intelligent and understanding waiver in California

1970(Carnley v. Cochran, 369 U.S. 506, 515-516 [ 8 L.Ed.2d 70, 76-77 , 82 S.Ct. 884 ].) In those cases where defendant claims a denial of counsel, the record must affirmatively show that he was advised of his right to counsel and that he made an intelligent and understanding waiver of his constitutional right.

1970(Carnley v. Cochran, 369 U.S. 506, 515-516 [ 8 L.Ed.2d 70, 76-77 , 82 S.Ct. 884 ].) In those cases where defendant claims a denial of counsel, the record must affirmatively show that he was advised of his right to counsel and that he made an intelligent and understanding waiver of his constitutional right.

1979The Johnson court merely held that “there is nothing in the record which remotely intimates that he [defendant] thereby made an intelligent and understanding waiver of his constitutional right to counsel” ( 62 Cal.2d at p. 334 , original italics) and presuming waiver from a silent record is impermissible.

1979The Johnson court merely held that "there is nothing in the record which remotely intimates that he [defendant] thereby made an intelligent and understanding waiver of his constitutional right to counsel" ( 62 Cal.2d at p. 334 , original italics) and presuming waiver from a silent record is impermissible.

1966“Moreover, it is settled that ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ (Italics added.) (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 464 ; accord, People v. Chesser (1947) supra, 29 Cal.2d 815, 822 [4] [ 178 P.2d 761 , 170 A.L.R. 246 ].)” (In re Johnson, supra, 62 Cal.2d 325, 335 .) It is true that in Johnson we observed that the determination to be made according to the indicated fac

1965To infer that crucial element from the bare plea of guilty would be inconsistent with our recent statement in People v. Douglas (1964) supra, 61 Cal.2d 430, 434 [4a], quoting from Johnson v. Zerbst (1938) 304 U.S. 458, 464 [ 58 S.Ct. 1019 , 82 L.Ed. 1461 , 146 A.L.R. 357 ], “that ‘courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Observing that “the principles declared in Johnson v. Zerbst [are] equally applicable to asserted waivers of the right to counsel in state cri

1989(E.g., Carnley v. Cochran (1961) 369 U.S. 506, 516 [ 8 L.Ed.2d 70 , 82 S.Ct. 884 ]; In re Tahl (1969) 1 Cal.3d 122, 131, 133 [ 81 Cal. Rptr. 577 , 460 P.2d 449 ].) Concerning jury deadlock, former section 190.4, subdivision (b) provided: "If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and impose a punishment of confinement in state prison for life without possibility of parole." In advising defendant of his right to a penalty jury and the *36 implications of a waiver, the court made no reference

1989(E.g., Carnley v. Cochran (1961) 369 U.S. 506, 516 [ 8 L.Ed.2d 70 , 82 S.Ct. 884 ]; In re Tahl (1969) 1 Cal.3d 122, 131, 133 [ 81 Cal. Rptr. 577 , 460 P.2d 449 ].) Concerning jury deadlock, former section 190.4, subdivision (b) provided: "If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and impose a punishment of confinement in state prison for life without possibility of parole." In advising defendant of his right to a penalty jury and the *36 implications of a waiver, the court made no reference

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1972(People v. Durham, 70 Cal.2d 171, 191 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Johnson, 13 Cal.App.3d 1, 4 [ 91 Cal.Rptr. 203 ]; People v. Bonville, 267 Cal.App.2d 4, 9 [ 72 Cal.Rptr. 592 ]; People v. Ruiz, 263 Cal.App.2d 216, 221-225 [ 69 Cal.Rptr. 473 ].) Authorities discuss the right of a defendant to represent himself in a criminal case in terms of an intelligent and understanding waiver by him of his right to counsel after a judicial determination of defendant’s competence to represent himself.

1966“Moreover, it is settled that ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ (Italics added.) (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 464 ; accord, People v. Chesser (1947) supra, 29 Cal.2d 815, 822 [4] [ 178 P.2d 761 , 170 A.L.R. 246 ].)” (In re Johnson, supra, 62 Cal.2d 325, 335 .) It is true that in Johnson we observed that the determination to be made according to the indicated fac

1966“Moreover, it is settled that ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ (Italics added.) (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 464 ; accord, People v. Chesser (1947) supra, 29 Cal.2d 815, 822 [4] [ 178 P.2d 761 , 170 A.L.R. 246 ].)” (In re Johnson, supra, 62 Cal.2d 325, 335 .) It is true that in Johnson we observed that the determination to be made according to the indicated fac

1966“Moreover, it is settled that ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ (Italics added.) (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 464 ; accord, People v. Chesser (1947) supra, 29 Cal.2d 815, 822 [4] [ 178 P.2d 761 , 170 A.L.R. 246 ].)” (In re Johnson, supra, 62 Cal.2d 325, 335 .) It is true that in Johnson we observed that the determination to be made according to the indicated fac

1965To infer that crucial element from the bare plea of guilty would be inconsistent with our recent statement in People v. Douglas (1964) supra, 61 Cal.2d 430, 434 [4a], quoting from Johnson v. Zerbst (1938) 304 U.S. 458, 464 [ 58 S.Ct. 1019 , 82 L.Ed. 1461 , 146 A.L.R. 357 ], “that ‘courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Observing that “the principles declared in Johnson v. Zerbst [are] equally applicable to asserted waivers of the right to counsel in state cri