In Re Masching, 261 P.2d 251 (Cal. 1953). · Go Syfert
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In Re Masching, 261 P.2d 251 (Cal. 1953). Cases Citing This Book View Copy Cite
94 citation events across 6 distinct courts.
Strongest positive: People v. Duvall (cal, 1995-01-19)
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1953 1989 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
examined Cited as authority (rule) People v. Duvall (4×)
Cal. · 1995 · confidence medium
Facts set forth in the return that are not disputed in the traverse are deemed true. ( Lawler, supra, 23 Cal.3d at p. 194.) Conversely, "[w]hen the return effectively acknowledges or `admits' allegations in the petition and traverse which, if true, justify the relief sought, such relief may be granted without a hearing on the other factual issues joined by the pleadings." ( Saunders, supra, 2 Cal.3d at p. 1048.) To respond to the return, the habeas corpus petitioner may either file a traverse or the parties may stipulate that the original habeas corpus petition be treated as a traverse. ( Lawl…
cited Cited as authority (rule) In Re Azzarella
Cal. Ct. App. · 1989 · confidence medium
(In re Masching (1953) 41 Cal.2d 530, 533 [ 261 P.2d 251 ].) A habeas corpus proceeding under section 5276, however, usually is not a collateral attack on the validity of some prior proceeding.
discussed Cited as authority (rule) In Re Lewallen (2×)
Cal. · 1979 · confidence medium
Code, § 1500; In re Saunders (1970) 2 Cal.3d 1033, 1047 [ 88 Cal.Rptr. 633 , 472 P.2d 921 ]; In re Masching (1953) 41 Cal.2d 530, 533 [ 261 P.2d 251 ]; In re Collins (1907) 151 Cal. 340 [ 90 P. 827 , 91 P. 397 ].) The traverse, which may incorporate the allegations of the petition, must deny or controvert each material fact or matter alleged in the return or such fact or matter will be deemed admitted; it is therefore analogous to the answer in civil actions.
discussed Cited as authority (rule) In Re Grant (2×)
Cal. · 1976 · confidence medium
(See id., at pp. 916-917; In re Masching (1953) 41 Cal.2d 530, 532 [ 261 P.2d 251 ].) Petitioner’s sole contention is that the provision of former section 11531 which precludes parole consideration for a minimum of 10 years constitutes cruel or unusual punishment in violation of California constitutional proscriptions.
discussed Cited as authority (rule) People v. Prince
Cal. App. Dep’t Super. Ct. · 1976 · confidence medium
After quoting the California Constitution’s guarantee of right to counsel 6 the court in In re Johnson said, at page 329: “.. . [Tjhere can be no doubt that the fundamental constitutional right to the assistance of counsel at all stages of the proceedings (see Gideon v. Wainright (1963) 372 U.S. 335 [ 83 S.Ct. 792 , 9 L.Ed.2d 799 , 93 A.L.R.2d 733 ]; People v. Douglas (1964) 61 Cal.2d 430, 434 [1] [ 38 Cal.Rptr. 884 , 392 P.2d 964 ]) is, in California at least, not limited to felony cases but is equally guaranteed to persons charged with misdemeanors in a municipal or other inferior court.…
discussed Cited as authority (rule) People v. Wingo (2×)
Cal. · 1975 · confidence medium
The Lynch criteria will continue to be employed, but analysis under the first test — i.e., the nature of the offense and/or the offender — will turn on the facts and circumstances of the individual case. (8) Habeas corpus is the remedy available to an aggrieved petitioner after his term has been set, or if the Adult Authority fails to fix the term within a reasonable time. ( In re Foss (1974) supra, 10 Cal.3d 910, 916-917 ; In re Masching (1953) 41 Cal.2d 530, 532 [ 261 P.2d 251 ].) [14] Any petitioner challenging his term as disproportionate will bear the burden of demonstrating that his …
discussed Cited as authority (rule) In Re Foss (2×)
Cal. · 1974 · confidence medium
(In re Masching, 41 Cal.2d 530, 532 [ 261 P.2d 251 ].) We have concluded that the provisions of section 11501 and its successor, section 11352, precluding parole consideration of a repeat offender for a minimum of 10 years constitute both cruel and unusual punishment under article I, section 6, of our Constitution.
discussed Cited as authority (rule) In re Saunders
Cal. · 1970 · confidence medium
(In re Masching (1953) 41 Cal.2d 530, 533 [ 261 P.2d 251 ]; In re Egan (1944) 24 Cal.2d 323, 330 [ 149 P.2d 693 ]; In re Collins (1907) 151 Cal. 340, 342-343 [ 90 P. 827 , 91 P. 397 ].) The traverse, and the petition where by stipulation or acquiescence it is treated as a traverse (see In re Stafford (1958) 160 Cal.App.2d 110, 113 [ 324 P.2d 967 ]), are analogous to the answer in a civil proceeding, and the petitioner “may deny or controvert any of the material facts or matters set forth in the return ... or allege any fact to show either that his imprisonment or detention is unlawful, or th…
discussed Cited as authority (rule) In Re Saunders
Cal. · 1970 · confidence medium
The Legal Issue (5) In a habeas corpus proceeding the return to the writ or order to show cause alleges facts tending to establish the legality of the challenged detention and is analogous to the complaint in a civil proceeding. ( In re Masching (1953) 41 Cal.2d 530, 533 [ 261 P.2d 251 ]; In re Egan (1944) 24 Cal.2d 323, 330 [ 149 P.2d 693 ]; In re Collins (1907) 151 Cal. 340, 342-343 [ 90 P. 827 , 91 P. 397 ].) (6) The traverse, and the petition where by stipulation or acquiescence it is treated as a traverse (see In re Stafford (1958) 160 Cal. App.2d 110, 113 [ 324 P.2d 967 ]), are analogous…
discussed Cited as authority (rule) In Re Hochberg
Cal. · 1970 · confidence medium
“It is elementary that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’ ” (People v. Merriam (1967) 66 Cal.2d 390, 396-397 [ 58 Cal.Rptr. 1 , 426 P.2d 161 ].) Furthermore, although habeas corpus cannot serve as a second appeal, “denial of the right to counsel is one trial error which has always been cognizable on habeas corpus” (In re Lopez (1970…
discussed Cited as authority (rule) In Re Ricks
Cal. Ct. App. · 1968 · confidence medium
(See People v. Thatcher, 255 Cal.App.2d 830, 832-833 [ 63 Cal.Rptr. 492 ]; In re Masching, 41 Cal.2d 530, 534 [ 261 P.2d 251 ]; In re Roberts, 40 Cal.2d 745, 748-749 [ 255 P.2d 782 ]; In re Levi, 39 Cal.2d 41, 47 [ 244 P.2d 403 ]; In re James, 38 Cal.2d 302, 314 [ 240 P.2d 596 ].) As previously stated, petitioner began serving his term in case number 250655 on January 30, 1962, and was released on parole June 7, 1965.
discussed Cited as authority (rule) Blake v. Municipal Court
Cal. Ct. App. · 1966 · confidence medium
(In re Masching, 41 Cal.2d 530, 532 [ 261 P.2d 251 ]; see also In re Jingles, 27 Cal.2d 496, 498 [ 165 P.2d 12 ].) Penal Code section 858 imposes upon the magistrate before whom the accused is brought a duty to inform him of his right to counsel, and section 859 requires, among other things, that the court appoint counsel if the accused so desires and is unable to employ an attorney. 1 Here, as the statement of facts indicates, respondent appeared without counsel, in a crowded traffic courtroom, where many others also awaited the disposition of their eases.
cited Cited as authority (rule) In Re Johnson
Cal. · 1965 · confidence medium
(In re Masching (1953) 41 Cal.2d 530, 532 [2] [ 261 P.2d 251 ] ; In re McCoy (1948) 32 Cal.2d 73, 76 [1] [ 194 P.2d 531 ]; In re Jingles (1946) 27 Cal.2d 496, 498 [1] [ 165 P.2d 12 ] ; see also Pen.
discussed Cited as authority (rule) Patterson v. People (2×)
Cal. · 1962 · confidence medium
A judge necessarily has a duty in every case, particularly when a party is not represented by counsel (see In re Masching, 41 Cal.2d 530, 534 [ 261 P.2d 251 ]), to determine that the proceedings in the case accord with statutory requirements.
cited Cited as authority (rule) People v. Palmer
Cal. Ct. App. · 1961 · confidence medium
(I n re Masching, 41 Cal.2d 530, 534 [ 261 P.2d 251 ].) Defendant at no time waived her right to counsel.
discussed Cited as authority (rule) In Re Merkle
Cal. Ct. App. · 1960 · confidence medium
(In re Masching, 41 Cal.2d 530, 532 [ 261 P.2d 251 ].) The essential inquiry is whether petitioner was in fact denied the right of having counsel present at a proposed blood-alcohol test, and, if so, whether that denial constituted a deprivation of due process.
discussed Cited as authority (rule) In Re Finn
Cal. Ct. App. · 1957 · confidence medium
“Accordingly, the return is to be considered as a complaint and the petition as an answer, and new matter set up in the petition which tends to invalidate the apparent effect of the process set forth in the return is deemed denied and must be proved by the party alleging it, namely, the petitioner.” (In re Masching, 41 Cal.2d 530, 533 [ 261 P.2d 251 ].) No evidence was offered at the hearing on the return of the writ by or on behalf of George G.
discussed Cited as authority (rule) People v. Crooker (2×)
Cal. · 1956 · confidence medium
In light of these facts, the District Attorney's refusal to interrupt the examination of petitioner, which had been proceeding for almost an hour, so that counsel could make inquiry for petitioner's son-in-law, does not constitute a deprivation of due process, either independently or in conjunction with all other circumstances in this case." (Emphasis added.) In In re Masching, 41 Cal.2d 530, 534 [ 261 P.2d 251 ], defendant requested counsel, and a continuance on the ground that he had been "confined to bed." His request was denied.
discussed Cited as authority (rule) People v. Simeone
Cal. Ct. App. · 1955 · confidence medium
In his supplemental brief he cites many decisions of the federal Supreme Court holding that “a defendant should be afforded a fair opportunity to secure counsel of his choice” (Powell v. Alabama, 287 U.S. 45 [ 53 S.Ct. 55 , 77 L.Ed. 158 , 84 A.L.R. 527 ]); ‘ ‘ in criminal prosecutions in any court the party accused shall have the right to appear and defend in person and with counsel” (In re Masching, 41 Cal.2d 530, 532 [ 261 P.2d 251 ]); the denial of a defendant’s request for a continuance and ordering a trial to commence at once amounted to a denial of his constitutional right to…
Retrieving the full opinion text from the archive…
In Re ROBERT H. MASCHING, on Habeas Corpus
Crim. 5436.
California Supreme Court.
Sep 25, 1953.
261 P.2d 251
1953 Cal. LEXIS 300
Morris Lavine for Petitioner., Ray L. Chesebro, City Attorney, Donald M. Red wine, Assistant City Attorney, and Philip E. Grey, Deputy City Attorney, for Respondent.
Gibson, Shenk, Edmonds, Traynor, Schauer, Spence.
Cited by 45 opinions  |  Published

Lead Opinion

GIBSON, C. J.

Petitioner was convicted in the municipal court of violating section 502 of the Vehicle Code, which provides that driving a vehicle upon a highway while under the influence of intoxicating liquor is a misdemeanor, and the judgment was affirmed on appeal to the appellate department of the superior court. The validity of the judgment of conviction is attacked in this habeas corpus proceeding on the grounds that petitioner was denied the right to be represented by counsel, that he was deprived of the right to a jury trial, and that the sentence imposed upon him is illegal. The District Court of Appeal issued a writ of habeas corpus and subsequently discharged it, and a petition for hearing was then granted by this court.* We have determined that the conviction was improper because petitioner was denied his right[*532] to counsel, and, accordingly, it is unnecessary to decide the other questions which he has raised.

Petitioner has exhausted his remedy of appeal, and he may use habeas corpus to test whether he was deprived of a fundamental right guaranteed by our Constitution. (In re Bell, 19 Cal.2d 488, 493, 495 [122 P.2d 22].) The California Constitution provides that in criminal prosecutions in any court the party accused shall have the right to appear and defend in person and with counsel.† (Cal. Const., art. I, § 13.) The right conferred by this provision extends to persons charged with misdemeanors. (See In re Jingles, 27 Cal.2d 496, 498 [165 P.2d 12].)

The record in the municipal court shows that an automobile driven by petitioner collided with a streetcar on May 10, 1952, and that two days later a complaint was filed against him. The minutes of the municipal court recite that on May 13 petitioner, appearing “in pro per,” was “duly arraigned, informed of the charge against him and of his legal rights,” that he “enters his plea of not guilty” and that he “personally demands jury trial.” The trial was set for June 12, and the case was called on that day in division 7. Petitioner appeared without counsel, and according to the reporter’s transcript the following occurred:

“The Court: Do you want this matter continued and for what purpose?
“Defendant Masching: Well, sirs, I have been confined to bed for the last three weeks and I would like a chance to get my witnesses, and also counsel.
“The Court:You have had plenty of time to do that. Motion denied. The matter will be sent out for trial.”

The minutes of division 7 for June 12 recite: “Defendant’s motion to continue denied. Defendant waives jury trial. Transferred to Division 6 for trial.”

Petitioner, tried on the same day before a judge without a jury, was found guilty and sentenced to be imprisoned in the[*533] city jail for 180 days. The sentence was suspended, and he was placed on probation for a period of three years on condition that he spend the first 170 days of the probationary term in jail.

Petitioner alleges that as a result of the accident he was confined in bed for three weeks with fractured ribs and a head injury, that during that period he was unable to secure an attorney or arrange to subpoena witnesses, that he was without funds to hire counsel and that a few days before trial he sought assistance from the public defender but was informed that this officer did not represent persons charged with driving while intoxicated. Petitioner further alleges that he at no time waived his right to counsel, that no attorney was appointed to aid him although a deputy public defender and other attorneys were present in the courtroom at the time of his trial, and that he was not sufficiently acquainted with legal procedure to know that he had to do anything other than request a continuance for time to obtain an attorney.

The return to the writ incorporates by reference the record of the appellate department of the superior court, including a transcript of the proceedings before the municipal court, and it has been stipulated that the petition may be treated as a traverse to the return. Accordingly, the return is to be considered as a complaint and the petition as an answer, and. new matter set up in the petition which tends to invalidate the apparent effect of the process set forth in the return is deemed denied and must be proved by the party alleging it, namely, the petitioner. (In re Egan, 24 Cal.2d 323, 330 [149 P.2d 693] ; In re Collins, 151 Cal. 340, 342-343 [90 P. 827, 91 P. 397, 129 Am.St.Rep. 122] ; see In re Oxman, 100 Cal.App.2d 148, 150 [223 P.2d 66].) As pointed out in the Collins case, the respondent is not required to file, in addition to the return, a pleading specifically denying the affirmative allegations of the petition when it is treated as a traverse. (151 Cal. at pp. 342-343.) However, even if we disregard the allegations which are not admitted by the return, the record plainly demonstrates that petitioner was improperly deprived of counsel.

It should be noted at the outset that there is nothing which indicates that petitioner waived his right to have an attorney. No express waiver was made, and there is no basis for implying one in view of the fact that petitioner informed the court, when his case was called for trial, that he wished to obtain counsel.

[*534] As we have seen, the record shows without dispute that petitioner informed the trial court that he had been ‘ ‘ confined to bed for the last three weeks” and that he would like a chance to get witnesses and counsel. While petitioner did not directly state that the illness or disability which confined him to bed prevented him from obtaining counsel, it is obvious that this is the meaning of his statement to the court. It must be remembered, in this connection, that petitioner did not then have the aid of an attorney to prepare a more specific or more detailed explanation for his appearance without counsel, and it would of course be unreasonable to apply to him the same standards of skill expected of an attorney. The declaration of the trial court to petitioner that “You have had plenty of time” to obtain counsel is not justified by the record and does not meet petitioner’s explanation that he was confined to bed during the three weeks immediately preceding the trial.

Since petitioner was not represented by an attorney when his case was called for trial, the court should have been particularly careful to safeguard his rights, and, before rejecting his uncontradicted explanation, it should have at least questioned him as to any doubts it might have had with respect to the truth or validity of his statement. Instead, however, the court summarily denied his request for a continuance and ordered trial to commence at once. Under all the circumstances this procedure amounted to a denial of petitioner’s constitutional right to counsel. It follows that his conviction cannot be permitted to stand and that he should be remanded to custody for further proceedings in the municipal court in conformity with his right to counsel. (In re McCoy, 32 Cal.2d 73, 76-77 [194 P.2d 531] ; see In re Egan, 24 Cal.2d 323, 337 [149 P.2d 693] ; cf. People v. Lanigan, 22 Cal.2d 569, 572-577 [140 P.2d 24, 148 A.L.R. 176].) Tf he is again sentenced to imprisonment, he will be entitled to have the time served on the invalid judgment credited upon the new confinement. (Pen. Code, § 2900.1; In re Roberts, 40 Cal.2d 745, 748 [255 P.2d 783] ; In re Levi, 39 Cal.2d 41, 47 [244 P.2d 403].)

The judgment of conviction being invalid, petitioner is remanded to the custody of the chief of police of the city of Los Angeles pending further proceedings in the municipal court.

Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

The bearing was granted upon application made by petitioner pursuant to section 1506 of the Penal Code, as amended in 1951, which provides that in all criminal cases the defendant or the People may apply to the Supreme Court for a hearing after a decision by a District Court of Appeal in a habeas corpus proceeding. (Cf. In re Alpine, 203 Cal. 731. 745 [265 P. 947]; In re Page, 214 Cal. 350, 354-358 [5 P.2d 6051.)

The constitutional requirement is supplemented by provisions of the Penal Code. Section 858 provides: “When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.” Section 987 provides: “If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.”

Concurrence

[*535] CARTER, J.

I concur in the conclusion reached in the majority opinion and generally in the reasoning upon which it is based, as it appears to be in full accord with the views expressed by me in my dissenting opinion in People v. Dorman, 28 Cal.2d 846, 855 [172 P.2d 686], except that in the Dorman case we were reviewing the case on its merits on an appeal from the judgment, and here the review is limited to the issues which may be raised on habeas corpus.

It is apparent to me that the principal error committed by the trial court in the ease at bar was in denying a continuance to enable the defendant to obtain counsel and prepare his defense, as it is clear that even if the court had appointed counsel for him and he had been forced to trial on the day the case was called, he would not have been accorded the type of trial guaranteed by both the federal and state Constitutions and the law of this state. Such was the situation in the Dorman case which a majority of this court sanctioned in affirming the judgment there. It is somewhat refreshing to me to see the court now reverse the position taken by it in the Dorman case.

Concurrence

SHENK, J.

I concur. The petitioner has shown a denial of his constitutional right to counsel. The cases involving this question usually turn on the application of their own facts. The facts in People v. Dorman, 28 Cal.2d 846 [172 P.2d 686], bear no resemblance to the present case. There the appellant was represented by counsel during all the 41-day period from arraignment to trial. During the trial he “was ably and energetically represented by counsel of his choice” and “The conduct of the defense was full and fair” (majority opinion, p. 852.) It was said in the dissenting opinion at page 859 that defense counsel “presented a vigorous defense.” The question in that case was whether the trial judge had abused his discretion in not granting a further continuance. It was held that on the facts presented he had not.

Petitioner’s application for a rehearing was denied October 22, 1953.