TEETS v. Lawrence Gene Dotson, the Real Party in Interest.*

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

Harley O. TEETS, as Warden of the State Prison at San Quentin, California, The People of the State of California, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, The Honorable Carlos R. Freitas, Judge thereof, Respondents, Lawrence Gene Dotson, the Real Party in Interest.*

Civ. 17082.

Decided: March 29, 1956

Edmund G. Brown, Atty. Gen., of the State of California, Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for petitioner. Donald D. Connors, Jr., J. Stewart Harrison, San Francisco, for real party in interest.

On October 17, 1954, Dotson and another were interrupted by Francisco Herrera while they were in the act of ransacking his home. At gun point, Herrera and his party of two men and two women were herded into a back bedroom, where the women were barricaded into a closet and the men bound and gagged. All were forced to empty their pockets and to give over the valuables on their persons, and after restraining the group, petitioner and his accomplice continued to ransack and loot the home. Herrera who had been bound and gagged with bits of material strangled to death before members of the party could extricate themselves and summon aid.

On October 24, 1954, Dotson, his teenage bride and his companion in crime, were apprehended in Reno, Nevada and brought back to California. On November 5, 1954, the defendants were arraigned before the Superior Court of San Francisco but when it was learned that Dotson was a minor of 18 years, proceedings were suspended and he was ordered taken before the Juvenile Court for possible proceedings under the Juvenile Court Law. He had been indicted on October 28th previously for violations of section 187 of the Penal Code (murder), section 459 of the Penal Code (burglary) and section 211 of the Penal Code (robbery). At the hearing before the Juvenile Court, the judge ordered that the cause be retransferred to the Superior Court under the general law.

Defendant was duly tried and, on February 2, 1955, was found guilty of murder and sentenced to life imprisonment. On February 8, 1955, he filed a notice of appeal from this judgment and this appeal has now been docketed in and is pending in the District Court of Appeal.

Dotson assigns as error the fact that at the time he was taken before the Juvenile Court, he was not represented by counsel and that he did not have any knowledge of the ‘felony-murder’ rule or its implications. He contends that counsel was not provided him until shortly before his trial in the Superior Court and then he only conversed with this counsel for fifteen minutes prior to the time he actually stood trial.

On October 27, 1955, while in jail and while the judgment of conviction was pending on appeal before the District Court of Appeal, defendant petitioned the Superior Court of Marin County for a writ of habeas corpus maintaining that he was being illegally detained and assigning as grounds to sustain this contention the identical instances of purported denial of counsel, that were the basis of his attack upon the judgment below. The Superior Court of Marin County issued such a writ and ordered the warden of the State prison to appear on January 20, 1956 to show cause why this defendant should not be released and to defend the charges of illegal detention that had been raised in the petition for writ of habeas corpus.

The attorney general, representing the state, seeks by this petition for prohibition to restrain the Superior Court of Marin County from entertaining these proceedings, and the issues thus presented in determining whether or not to issue such relief are:

1. Whether a Superior Court may issue a writ of habeas corpus and hold a hearing on the charge of illegal conviction and detention on the petition of a party, who has, by appeal, directly attacked the judgment wherein he was convicted, on the same grounds.

2. Whether an Appellate Court may prohibit the hearing, once the Superior Court has determined there shall be such hearing in view of the fact that jurisdiction to issue habeas corpus is given concurrently to both Superior Court Judges and Appellate Court Justices.

In France v. Superior Court, 201 Cal. 122, 255 P. 815, 52 A.L.R. 869, petitioners sought a writ of prohibition to restrain the Superior Court from ordering them sent to the penitentiary pursuant to a judgment of conviction which they maintained had been nullified by the issuance of a writ of habeas corpus. They had been arrested, charged, tried and convicted (by a Superior Court) of a crime of burglary with explosives. The judgment was appealed and affirmed, but prior to the going down of the remittitur, the court held in In re Schiaffino, 70 Cal.App. 65, 232 P. 719, that the crime of burglary with explosives was only a misdemeanor. The Superior Court, following the rule of the Schiaffino case, pursuant to their writ of habeas corpus, ordered that the parties be discharged as the Superior Court was without jurisdiction to try them and hence the judgment and sentence were void. Factually, the parties were never released from custody for the district attorney had reinstituted misdemeanor charges against them and when the order of release under the habeas corpus writ reached the sheriff, he was also detaining petitioners under a warrant of arrest. In the meantime, the Schiaffino case was overruled and the crime of burglary with explosives was properly declared to be a felony and the district attorney filed a motion for an order of court directing that the original judgment be carried out and the petitioners ordered incarcerated at San Quentin. Petitioners opposed this motion on grounds that the order of the Superior Court in habeas corpus had the effect of discharging them from custody for the crime charged in the original trial. Respondent argued that such order was void on grounds that the Superior Court had no jurisdiction to issue such writ since the action was then on appeal to an Appellate Court and pending such appeal, the Superior Court had no jurisdiction in the matter. The court so held saying at pages 131–132 of 201 Cal., at page 819 of 255 P.:

‘But we think there is sufficient to be found in the foregoing authorities to support this court in holding that a trial court, after an appeal from a judgment of conviction rendered by it in a criminal action has been perfected, is without authority to discharge through habeas corpus proceedings the appellant during the pendency of said appeal, for any error, defect, or other infirmity appearing or existing in the proceedings taken in said action, which was or might have been legally presented to said appellate court on said appeal. There is nothing to be found in this state, nor for that matter in the courts of any other state to which our attention has been called or of which we have any knowledge, contrary to such a rule of procedure. We have not overlooked the provision of the Constitution of the state * * * investing the superior courts with power to issue writs of ‘habeas corpus on petition by or on behalf of any person in actual custody in the respective counties,’ nor the provisions of the Constitution, conferring upon the Supreme Court and the District Court of Appeal power to issue like writs. It may be conceded that the superior courts of the state have concurrent jurisdiction with the appellate courts in habeas corpus proceedings, but this does not mean that they have the power to interfere with the appellate jurisdiction of either of said last-named courts in matters pending before said appellate courts or to overrule or set aside a judgment rendered therein.'

Respondent concedes the correctness of the France case, supra, and the point that habeas corpus may not be employed as an alternative to an appeal, but, he argues ‘that principle of law is not involved in this case; the rule of law involved here is an exception thereto and provides that, irrespective of an appeal, resort may be had to habeas corpus if the matters alleged in support thereof are outside the record on appeal and not susceptible of inclusion therein.’ He argues that the order remanding the real party in interest to the Superior Court appears as Exhibit ‘C’ to the attorney general's petition and that order is silent with respect to the appearance of counsel for the accused and that an appellate court will not presume error in a lower court's proceedings for it must be affirmatively shown. People v. Jocelyn, 29 Cal. 562; People v. La Marr, 115 Cal.App. 138, 1 P.2d 27; People v. King, 27 Cal. 527; 4 Cal.Jur.2d, Appeal and Error, § 455, pp. 281–282; 3 Am.Jur., Appeal and Error, § 572 (pp. 213–214) and People v. Gonzales, 69 Cal.App. 609, 231 P. 1014. He argues that in considering these contentions in this fashion no violence is done to the appellate court's jurisdiction.

Generally a writ of habeas corpus will not be granted if the alleged errors urged by the petitioner have been or could be appealed to a higher court. In re Seeley, 29 Cal.2d 294, 296, 176 P.2d 24. But this rule is not inflexible for even though an appeal is available this does not preclude resort to habeas corpus to assert a denial of a fundamental right. See discussion in In re Bell, 19 Cal.2d 488, 122 P.2d 22 wherein petitioners sought to assert the invalidity of a statute.

California has however taken a more narrow approach than some sister states and the federal courts where petitioner asserts the denial of the right to counsel. In In re Gutierrez, 1934, 1 Cal.App.2d 281, 36 P.2d 712, it was determined that where a petitioner had been convicted of vagrancy in a justice court which had inter alia denied him the right to counsel, he had failed to state sufficient grounds to justify relief in habeas corpus, since this writ could be employed only to assert the lack of jurisdiction by a court, and this objection was not jurisdictional.

A decade later in In re Connor, 1940, 16 Cal.2d 701, 108 P.2d 10, writ of certiorari denied by the U. S. Supreme Court 1941, Connor v. People of State of California, 313 U.S. 542, 61 S.Ct. 844, 85 L.Ed. 1510, the Gutierrez case, supra, was approved. Petitioner therein did not file his application until six years after his conviction. He alleged that from the time of arraignment through conviction the trial court had never informed him that he was entitled to be represented by counsel or given him an opportunity to procure qualified legal aid. The record belied his contentions showing that he was so informed and was offered the opportunity but he had spurned it. The court moreover pointed out that while he had made a motion to vacate the judgment of conviction and had subsequently appealed it to a higher court he had never raised this purported ground of error before. The court stated at page 705 of 16 Cal.2d, at page 13 of 108 P.2d:

‘The point could have been urged by petitioner on an appeal from the judgment, but none was taken. It could also have been urged in the proceedings to vacate the judgment instituted in 1933 and 1934, but it was not, either in the trial court or on appeal. [Citation.] It is not a good ground for discharge in this proceeding. In this state a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him.’

The court summarized by stating at page 706 of 16 Cal.2d at page 13 of 108 P.2d:

‘Therefore, where the alleged denial of the right was not asserted on an appeal from a judgment of conviction, or, as here, on an appeal from an order denying a motion to set aside the conviction, it will be presumed—under the presumption of validity and regularity which attends every final judgment—that the requirements as to counsel were met.’

The later cases which have considered the problem of denial of counsel and the manner in which it may be asserted, have not impeached the language of the Connor case, supra. In In re Egan, 24 Cal.2d 323, 337, 149 P.2d 693, the court went no further than to state that assuming a petitioner could show deprivation of counsel, he would have to also show that an unfair trial resulted. The court there determined that a reading of the record showed that petitioner had not sustained the burden of showing unfairness. In People v. Adamson, 34 Cal.2d 320, 210 P.2d 13, 16, the court determined that petitioner had erroneously applied for a writ of error coram nobis and that habeas corpus was the proper remedy to effect a collateral attack on a judgment of conviction obtained in violation of fundamental rights. The court stated that habeas corpus can be used to advance the error in the denial of the right to counsel ‘at least where no other remedy is available.’

The most recent expression from the Supreme Court, In re James, 38 Cal.2d 302, 240 P.2d 596, determined that where a defendant was not informed of his right to counsel at the outset but was so later in the proceedings and subsequently pleaded guilty, his plea did not amount to a waiver of the right and this objection could be raised on habeas corpus. However having pleaded guilty, his judgment could not be appealed, and it would seem that under the circumstances his only opportunity to raise the objection was by habeas corpus.

The end result of this analysis seems to indicate that while habeas corpus is available under certain circumstances to raise a denial of counsel, those circumstances must be such that they could not be presented in any other manner. If this is not so, the ‘piecemeal trial’ of the case referred to by the court in the Connor case, above, could be achieved in many instances.

As we have said above, respondent admits that habeas corpus may not be employed as an alternative to an appeal, but he seeks to bring himself within exceptional circumstances. But the reason for his plight is his own failure to raise the objection in the court below so that it could have been made a part of the record. The opportunity to raise the objection having existed and been waived, respondent cannot bring himself within the spirit of the exception to the rule. In re Connor, 16 Cal.2d 701, 108 P.2d 10.

In answer to the two grounds assigned by the defendant for a writ of habeas corpus, we conclude:

(1) The minor was not entitled to have counsel assigned in the Juvenile Court proceeding as a matter of right, and without his request. In re O'Day, 83 Cal.App.2d 339, 189 P.2d 525; People ex rel. Weber v. Fifield, 136 Cal.App.2d 741, 289 P.2d 303. These cases dealt with minors brought before the Juvenile Court by verified petition pursuant to Welfare and Institutions Code section 721 et seq. However where a minor charged with crime has been certified to the Juvenile Court pursuant to section 826 of that code ‘Except as otherwise provided in this article, the proceedings in the juvenile court * * * shall be the same as in the case of a verified petition.’ Welf. & Inst.Code, sec. 829. His right to counsel not being ‘otherwise provided’ in the article would seem to be no different. If the minor had requested counsel and his request had been refused, it would present a somewhat different case. But we can decide that question when it properly arises.

(2) That the minor had but fifteen minutes before his trial in the Superior Court to consult with his assigned counsel. The point presents a legal absurdity. No request for a longer period was made, no showing that fifteen minutes was not a sufficient time for the consultation, no showing that the limitation came from the act of counsel or of that of the defendant, and, particularly, there is no showing that the time was limited by the court over the objection of defendant, or otherwise.

The same reasoning may be applied to the alleged error in the representation by the public defender's office.

If, at the time of the trial defendant believed that he should have had more time to consult with his counsel he could have requested a continuance. If that were not granted he could have raised the point on a motion for new trial or in arrest of judgment. There is no indication in the record in this proceeding that defendant's counsel needed or requested further time to prepare for trial, and there is nothing in the record showing that further time for the trial would have served defendant any useful purpose.

While we cannot prohibit the issuance of a writ of habeas corpus once the writ has issued, this court still has authority to restrain further proceedings in the matter, if the court in issuing the writ exceeded its jurisdiction. Under the circumstances of this case the court lacked jurisdiction to issue the writ and to entertain proceedings to consider objections which should have been raised on appeal.

Let a peremptory writ of prohibition issue.

NOURSE, Presiding Justice.

DOOLING and KAUFMAN, JJ., concur.