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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, v. SUPERIOR COURT OF THE COUNTY OF MARIN and Caryl Chessman, real party in interest. IN RE: the Application of Caryl CHESSMAN For a Writ of Habeas Corpus.

Civ. 16206.

Decided: September 15, 1954

Caryl Chessman, in pro. per. and for Court. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., for People.

Two proceedings are before this court, 1. an appeal from an order made in a habeas corpus proceeding in which the respondent Chessman was the petitioner and 2. a petition for a writ of certiorari to review and annul said order.

The respondent Chessman is confined in San Quentin under sentence of death. He elected to carry on his legal attacks upon the judgments of conviction in pro. per. He prepared the petition which initiated this proceeding and by supplement to such petition showed that the warden had refused to forward it to the superior court for filing and it was developed at the hearing that after fourteen days delay the warden had finally permitted its filing only when advised to do so by the attorney general. He also complained that as a part of disciplinary action imposed upon him by the prison authorities he had been deprived of his personal books and papers and had thereby been prevented from the preparation of legal papers directed to an attack upon the judgments of conviction against him.

The court made the following order:

‘(1) That the said Petitioner be allowed immediate access by mail to the courts of this State and of the United States at all times:

‘(2) That the said Petitioner be allowed to make all reasonably necessary legal research for, and to prepare and file with any such court, any document he deems necessary to the maintenance of protection of his civil rights or to the effective representation of himself on appeal from, or in collaterally attacking, any or all of those judgments of conviction under which the Respondent Warden derives his legal authority to hold the said Petitioner in custody.

‘(3) That the said Petitioner be allowed to retain his personal legal papers and books at all times during which he may reasonably make use of them for the purposes hereinabove set forth.

‘(4) That while so representing himself on appeal or in collaterally attacking any or all of those said judgments of conviction, the said Petitioner shall be allowed privately to consult with attorneys of his own choosing and to consult and communicate with other responsible persons, so long as the said Petitioner and those who confer with him at the prison or communicate with him upon legal matters comply with the Rules and Regulations of the Prison respecting such activities.’

By reason of a doubt as to whether such order is appealable under the language of Penal Code, § 1506 (see Ex Parte Maro, Cal.App., 248 P.2d 135, hearing granted in the Supreme Court and appeal later dismissed as moot, 40 A.C., No. 10, p. 3, minutes of the Supreme Court) the attorney general, as noted, filed a petition for certiorari as well as a notice of appeal. Since both proceedings are before us and since we have concluded that the order of the trial court should be affirmed it is not necessary for us to decide the jurisdictional question.

The attorney general cites cases from the federal courts laying down the general principle that the courts will not on habeas corpus undertake to interfere with the internal management of a prison by the prison authorities. We may concede the general principle but it is not controlling in the matters covered by this order. The rights of access to the courts, In re Robinson, 112 Cal.App.2d 626, 246 P.2d 982, and to consult counsel, In re Rider, 50 Cal.App. 797, 195 P. 965, are fundamental and it was squarely held in the two cases cited that these rights may be enforced by the courts in habeas corpus proceedings. The paragraphs numbered 1, 2 and 3 above quoted from the order of the superior court enforce the right to prepare and have filed promptly in the courts such legal documents as the respondent deems necessary in attacking the judgments of conviction against him. The evidence shows that the warden denied respondent access to the courts in the particular instance for 14 days. The warden did not undertake to testify that he might or would not do so again. The attorney general points to an unsworn statement made by his deputy in the habeas corpus proceeding: ‘My advice to the Warden, and he had followed it, and in this case also, no matter how false it (a petition) is, send it to the Court and that is what happens on petitions.’ As noted, this was the unsworn statement of the attorney. If it were to be given any weight it is subject to the construction that despite the attorney general's previous advice that all petitions prepared by prisoners should be filed in court the warden delayed this filing until he got another opinion from the attorney general. In his unsworn statement the attorney added: ‘I can appreciate how a petition can be held up a few days when somebody reviewing it sees something which is absolutely false and he will send it back as here.’ The judge under the circumstances was entitled to draw the inference that a real danger existed that respondent's prompt access to the courts might again be denied to him. The fact that as a part of disciplinary procedure respondent was at times deprived of his personal books and papers and prevented from effectively working on his case was admitted and the right to do this was insisted upon by the warden. Access to the courts is as effectively denied by preventing the preparation of legal documents as it is by preventing their filing. We can do no better than quote from the United States Supreme Court in Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 85 L.Ed. 1034, a case relied upon in In re Robinson, supra, 112 Cal.App.2d at apge 629, 246 P.2d at page 983: “(T)he state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus. Whether a petition * * * is properly drawn and what allegations it must contain are questions for that court alone to determine.”

The portion of the order numbered 4 assures the respondent the right to privately consult with attorneys of his own choosing and with other responsible persons about his case ‘so long (as they) comply with the Rules and Regulations of the Prison.’

It was proved that the warden had refused to permit the respondent to see a named attorney who came to the prison in response to a letter from the respondent and the warden testified that if respondent asked to see this attorney again ‘I am not prepared to say whether or not we would approve it.’ The respondent testified that he was carrying on an investigation of the facts leading to his convictions and would desire to consult witnesses who might come to the prison voluntarily to see him. In view of the warden's attitude expressed on the stand the court could reasonably infer that there was a real danger that the warden might refuse such interviews or some of them.

The attorney general argues that at the time of the hearing the respondent was being deprived of none of the rights protected by the order. The fact that he had been deprived of such rights and might be again was sufficient basis for the order. It would be intolerable if a prisoner could be deprived successively of the same fundamental rights and the courts would be powerless to act because when he did get before a court those rights were temporarily restored to him.

The subdivision numbered 2 of the order is perhaps too broad in that it does not take into account the reasonable rules and regulations of the prison. That paragraph of the order is amended by adding thereto the words ‘subject to the rules and regulations of the prison’ and as so amended the order is affirmed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.