IN RE: Thomas MARTINEZ

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Court of Appeal, Second District, Division 5, California.

IN RE: Thomas MARTINEZ, on Habeas Corpus.

Cr. 43343.

Decided: June 23, 1983

Dennis A. Fischer, Santa Monica, under appointment by the Court of Appeal, for petitioner. John H. Larson, County Counsel, Frederick R. Bennett, Principal Deputy County Counsel, Los Angeles, for real parties in interest (Superior Court of Los Angeles County, Dist. Atty. of Los Angeles, Sheriff of Los Angeles).

Petitioner seeks restoration of his pro. per. status and of limited pro. per. privileges, as more fully described hereinafter.

On October 4, 1982, petitioner prepared the within habeas corpus petition in pro. per.   The petition, which was not properly verified, was filed October 7, 1982.   In it petitioner alleged that he was being held incommunicado and that he had been stripped of his pro. per. status and privilege to defend himself in a matter pending in Los Angeles Superior Court before Judge Gordon Ringer.   He further alleged that on July 30, 1982, the district attorney's office happened on evidence purportedly alleging an escape plan;  that an investigation was begun at that time resulting in a search of his cell on August 26th, pursuant to a warrant issued by Judge Ringer;  that a neutral attorney received all legal materials seized from his cell and turned over to the court only evidence pertaining to the alleged escape plan.   He further alleged that following the search he was held incommunicado for four days, at which time he was taken before Judge Ringer who “addressed the matter of the alleged escape plan, and also the status of my acting in propria persona in a closed camera hearing.”   Petitioner stated that since he had yet to be charged with escape he would “not burden the court with anything other than what transpired at my court appearance.”   He went on to state that there was nothing submitted in evidence at the hearing that showed “conclusively” that he had abused his pro. per. status by devising a plan of escape.   He alleged that he was being held in solitary confinement;  that he could not receive personal phone calls or visits;  that he could not send or receive mail;  and that he could not phone his attorneys or investigators, nor correspond with them.   He then alleged that he had other cases pending in other jurisdictions and in other courtrooms, notably a murder case in Pasadena where he faced the death penalty, and that the order prevented him from calling his attorneys or his investigator in that case.   Petitioner failed to give us the case numbers of any of the matters pending against him or the names of the attorneys representing him.   The petition was received in an envelope with a post office box in Glendale shown as the return address, belying, at least inferentially, petitioner's assertions that he was cut off from the outside world.

Despite the seriousness of the allegations contained in the petition, it clearly appeared that petitioner was concealing the facts which were before the trial court, not because he did not wish to “burden” us with them, but because they were undoubtedly unfavorable.   His recitation of the privileges which had been denied him did not allege that his attorneys and investigator could not visit or telephone him, as opposed to his initiating contacts with them.   Since petitioner was represented by counsel, since counsel had not petitioned the court for relief, and since petitioner failed to inform us of the facts upon which the trial court relied, we concluded that petitioner had not made a prima facie showing that there had been an abuse of discretion.   We denied the petition on October 14, 1982.

On November 8, 1982, petitioner filed a petition for hearing in the Supreme Court.   Appended thereto was an affidavit from his court-appointed investigator explaining that the petition was late because, although petitioner had handed him the petition on October 22d, he had neglected to pay postage on it.   This petition did not claim that petitioner was being held incommunicado, merely that he had lost his pro. per. status and privileges on the basis of “pure speculation” as to a plan of escape.

The Supreme Court granted the petition for hearing, determined that mandate was a more appropriate vehicle for relief than habeas corpus, and that good cause existed to excuse petitioner from the requirement that he provide a record of the proceedings below.  (Sherwood v. Superior Court, 24 Cal.3d 183, 154 Cal.Rptr. 917, 593 P.2d 862).   The Supreme Court transferred the matter to us with directions to issue an alternative writ ordering the superior court either to vacate its order revoking petitioner's right of self-representation and his pro. per. privileges in county jail and ordering the sheriff to permit petitioner to correspond confidentially with counsel, or to show cause why such relief should not be granted.   The Supreme Court further directed that petitioner be permitted to cure the defect in the verification of the petition.

We thereupon solicited and secured a proper verification from petitioner, issued the alternative writ and, at petitioner's request, appointed counsel to represent petitioner before this court.   The People filed a written return to the alternative writ which, with exhibits, established the following series of events.

On October 13, 1981, petitioner and a female companion were arrested and subsequently charged by information with two counts of robbery in Los Angeles Superior Court case No. A–372441.   In January 1982 petitioner was charged, in Los Angeles Superior Court case No. A–562477, with additional multiple counts of robbery, and with the murder of one California highway patrolman and the attempted murder of a second patrolman.   Special circumstances were alleged.1

Pursuant to Penal Code section 987.2, an attorney was appointed to represent petitioner in the murder-robbery case.   In the robbery case (that before us here), however, petitioner chose to appear in pro. per.   On April 12, 1982, he was granted pro. per. status with concomitant jailhouse pro. per. privileges.   These included use of supplies and materials as needed, the appointment of a private investigator with an allowance of $800, appointment of a legal runner, appointment of a doctor pursuant to Evidence Code sections 730, 952 and 1017, and a $40 allowance for telephone calls.

Petitioner was housed in a single man high security cell adjacent to the jail law library.   His pro. per. status enabled him to send and receive any mail marked legal mail without its being read by jail personnel.   He was also able to make unmonitored telephone calls and to accumulate “legal material” which he could keep in his cell free from inspection.   In addition, his court-appointed runner and investigator could meet with him confidentially and deliver to him and receive from him “confidential” materials.

The events leading to revocation of petitioner's pro. per. status were set in motion on July 31, 1982, when one D. Smith, a civilian employee of the Arizona Department of Public Safety, assigned to locate and assist stranded motorists, found an abandoned vehicle with a burned out engine on I–10, 70 miles west of Phoenix.   He saw a folded piece of yellow paper, with visible writing, located on the dashboard, to the left of the steering wheel.   It is common practice in the area for stranded motorists to leave notes for officers stating when the owner will return for the car.   Believing this to be such a note, Smith reached through a window and retrieved the note.   It turned out to be a note pertaining to a Los Angeles jail escape attempt.   Smith immediately called Arizona Highway Patrol Officer Fredrick who pursued the investigation.   Upon arriving at the scene, Fredrick took custody of the papers and impounded the vehicle.

The papers consisted of an envelope addressed to a Pat Martinez in Phoenix, a letter bearing the salutation “Cuz,” written by a Los Angeles County jail inmate detailing his schedule and whereabouts for the purpose of having the recipient of the letter assist him to escape, and a diagram of the route the inmate traveled from the jail to County General Hospital for medical treatments.

There was also a second letter among the papers on the dashboard.   It bore the salutation “Hey Pat” and was signed “Your Cuz Tom.”   This letter contained instructions to enable the recipient (“Pat”) to perpetrate a robbery in Mississippi of a man known to the writer (“Tom”) to keep large sums of cash in secret locations.   The whereabouts of these caches was described in detail, along with the security precautions taken by the owner of the property.

Los Angeles law enforcement authorities were contacted and petitioner was identified as the likely author of the letters.   The information contained in the letter regarding petitioner's medical appointments and the accuracy of the diagram were confirmed.   The documents seized in Arizona were transmitted to Los Angeles where they were examined by a handwriting expert.   He concluded that petitioner had written the two letters and that petitioner's mother might have addressed the envelope to Pat Martinez.   The address on the envelope was found to be the home of petitioner's cousin Joyce Martinez.   Pat Martinez was believed by Arizona authorities to be a relative of Joyce Martinez.

Based upon this information, a warrant was obtained and on August 26, 1982, petitioner's jail cell was searched.   A neutral court-appointed attorney received and reviewed the “legal materials” taken from the cell.   Petitioner was transferred to a different cell and his visitation, telephone and correspondence privileges were temporarily suspended in a court order issued by Judge Ringer.   On August 27, 1982, the court issued an amended order exempting petitioner's attorneys and investigator from the previously imposed prohibition on petitioner's receiving visitors.

On August 30, 1982, Judge Ringer conducted an in-camera proceeding, apparently not attended by the People, at which he examined the documents taken from petitioner's cell.   Notes of the in-camera proceedings were taken down by a court reporter, but not transcribed, pursuant to the court's direction.2  Following the in-camera hearing, proceedings were held in open court at a session attended by two prosecutors, defendant and one of his attorneys.   At the start of these proceedings the court announced that all but one of the items it had examined in camera were neither privileged nor work product and that, in the judge's view, “they are direct evidence of Mr. Martinez' frantic and thus far futile attempts to escape on a possible capital charge.   They are to be turned over to the prosecution.”

The items seized from petitioner consisted in part of correspondence with prison inmates in Tennessee.   Seven of these were letters signed “Bill.” 3  They spanned a period from April 20 to July 25, 1982.   They contained references to a certain “motion” that Bill had prepared for petitioner, that he urged petitioner to proceed with and that he guaranteed the results of.   There were also references to a friend of Bill's whom petitioner was advised to call if he needed help, and other references indicating that Bill knew that petitioner had tried unsuccessfully to call the friend and that he should try again.4  Bill also made inquiries as to whether he could transmit mail to petitioner through petitioner's counsel.5

The correspondence, read in the context of the letters seized in Arizona, is reasonably susceptible to the interpretation that “motion” is at times used as a code word referring to physical motion, to wit, flight, and not to legal pleadings.

At the August 30, 1982, hearing the People moved to revoke petitioner's pro. per. status, based upon the affidavit in support of the search warrant (to which the letters found in Arizona were appended as exhibits), the warrant, and the return to the warrant, including the items which had been seized pursuant to the search warrant and which the court had just ordered turned over to the prosecution.   Neither petitioner nor his attorney objected to receipt of these items in evidence in support of the People's motion.   The attorney did object on behalf of petitioner to the revocation of petitioner's pro. per. status, arguing that even if restrictions upon his pro. per. privileges were appropriate, his right to self-representation should be maintained.   Having so stated, the attorney went on to state that unless petitioner were allowed to retain his jailhouse pro. per. privileges, his right to represent himself would become meaningless.

The court then revoked both petitioner's pro. per. status in court and his pro. per. privileges in jail, stating, “This request ․ to go pro per in Mr. Martinez' pending robbery case before me is a fraud, a delusion and a sham.

“As [the attorney] pointed out, he can't have pro per court privileges without pro per jail privileges, because unless he has a typewriter and pieces of paper and pencils and pens to write on, and phone calls and access to the law library, he can't prepare his case in court, assuming that was the reason he wanted to go pro per in the first place.

“So, I can't revoke the one without the other, can I?

“In any event, I am revoking both.   Mr. Martinez has not only abused the system, but he has abused it in view of having somebody come by so he can escape from a capital charge.   It's that simple.

“He's forfeited any right he has had in the past.   That right is subject to being revoked.   He's forfeited any right he's had in the past to be his own lawyer as long as these charges are pending.   So, he's no longer pro per.”

The court then appointed the attorney to represent petitioner in the robbery case, to which petitioner objected.   It continued the previous order requiring cell confinement of petitioner and denying him phone calls or visitors other than the attorneys and investigator.   The attorney requested a hearing on these restrictions “in the very near future.”   The court told him to set a date for one.

Further proceedings were held on October 4, 1982, in Judge Ringer's chambers.6  Thereafter, petitioner was permitted to make telephone calls, receive visitors and send and receive legal and personal mail on the same terms as other inmates who do not have pro. per. status.   His pro. per. status and privileges remained revoked.   Thus the evidence establishes that except for the time between August 26th, when Judge Ringer issued his order, and August 27th, when he amended it, petitioner's attorneys and his investigator were always permitted to visit him.   It also appears, despite petitioner's allegations that he was denied access to the courts and that he had to smuggle the instant petition out of the jail, that on the very day he prepared the petition, jail authorities ceased holding him incommunicado, and restored to him the normal communication rights enjoyed by other nonpro. per. inmates.

It clearly appears that there was highly substantial evidence before Judge Ringer that petitioner was formulating a plan of escape and that he had solicited assistance from persons outside the jail to accomplish his goal.   Furthermore, it was reasonably inferable that petitioner had used his pro. per. jail privileges to further his plans.   The court did not abuse its discretion in finding that petitioner's request for pro. per. status with the jail privileges attendant was a “fraud, a delusion and a sham” utilized to facilitate his escape plans.

 Violation of jail rules or a demonstrable need to segregate an inmate who constitutes a threat to jail security justifies restriction or termination of jailhouse pro. per. privileges.  (Wilson v. Superior Court, 21 Cal.3d 816, 821–822, 148 Cal.Rptr. 30, 582 P.2d 117.)   The evidence before the trial court was more than sufficient to justify termination of petitioner's pro. per. privileges;  and the manner in which the proceedings were conducted below afforded petitioner due process of law.  (Id., at pp. 827–828, 148 Cal.Rptr. 30, 582 P.2d 117.) 7

There remains the question of whether the trial court had the power to revoke petitioner's right to self-representation, as distinct from the jailhouse pro. per. privileges that accompanied that status.   In Faretta v. California, 422 U.S. 806, 834, footnote 46, 95 S.Ct. 2525, 2540, footnote 46, 45 L.Ed.2d 562, recognizing the potential for abuse of the right of self-representation, the United States Supreme Court stated, “․ the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.   See Illinois v. Allen, 397 U.S. 337 [90 S.Ct. 1057, 25 L.Ed.2d 353].”  It is clear from the context in which this statement is made, and from the facts of Illinois v. Allen, supra,8 that the Supreme Court was referring to “serious and obstructionist misconduct” in the courtroom.   We see no reason, however, why the same rule should not apply to serious misconduct outside the courtroom where, as here, the trial court makes a factual finding that the right to self-representation was invoked as a fraud and a sham to secure jailhouse privileges which would facilitate the planning and execution of an escape.   The trial court did not abuse its discretion in revoking petitioner's right to pro. per. jail privileges, and with it pro. per. status, based on the facts then before it.

Petitioner, through his appointed counsel, filed a reply to the People's written return to the alternative writ.   Therein he denies the allegations of attempted escape, and asserts that even if justification once existed to suspend his right of self-representation and his pro. per. privileges, that justification no longer exists.   He seeks reinstatement of those rights, but offers, alternatively, to accept representation by the appointed attorney “as co-counsel,” and to forego such pro. per. privileges as use of a legal runner, personal use of an investigator and interviews with witnesses, if he is permitted access to the county jail law library.

 Pursuant to Evidence Code section 459, we take judicial notice of the fact that since oral argument was had in this matter, petitioner has been convicted in the murder-robbery case of one count of murder in the second degree, one count of attempted murder, seven counts of robbery and four counts of assault with a deadly weapon.   His probation and sentencing hearing is scheduled for July 25th.   Although petitioner no longer faces the death penalty, it would appear that his motive to escape continues to be strong.   The trial court remains in the best position to evaluate both the present sincerity of petitioner's request that his pro. per. status be restored and the potential threat to jailhouse security should he be granted access to the law library.   The trial court is directed to conduct a further hearing to determine whether petitioner's present request to represent himself in court as co-counsel with the attorney presents a threat to public safety and security.   In all other respects the relief prayed for is denied.

The alternative writ is discharged.   The matter is remanded to the trial court for further proceedings consistent with the views expressed herein.

FOOTNOTES

1.   For convenience sake, case No. A–372441 will be referred to as the robbery case and case No. A–562477 will be referred to as the murder-robbery case.

2.   Neither petitioner nor his appointed counsel herein has requested that we obtain a transcript of the in-camera proceedings.   Since it is the petitioner's responsibility to provide an adequate record in support of a petition for extraordinary relief (Sherwood v. Superior Court, 24 Cal.3d 183, 186–187, 154 Cal.Rptr. 917, 593 P.2d 862), and since petitioner is now represented by counsel herein and no longer has any excuse for not providing an adequate record, we will assume that the transcript would not benefit petitioner.

3.   Elsewhere in the documents he is identified as Bill Cross.

4.   The following are pertinent excerpts from the correspondence in chronological sequence.  “I'll have someone call our friend out there if need her for something.   Let me know.   The motion is ready when you are.   Let me know and I'll send it right away.”“See if you can stir up a little “Blue Smoke” and do a few tricks with the mirror.   I prefer the see through kind myself ․  My friend was out for the evening when you called.   I know you called.   She'll be around 95% of the time and no overnight stuff involved.   As a matter of fact, she'll stay close to the farm.   Call anytime, day or night.   Keep your eye on that mirror ․  My friend out there keeps me posted on all things․  How about a letter, confidential, sent to your attorney?   Will he open it before you get it?   Let me know soon.”“Sent you one letter this morning.   Thinking of that particular motion we've discussed and everything and I say you can use that motion.   I know for a fact it will work and help in that particular case.   I have discussed several matters with my attorney ․  We also talked about two other motions we feel that will help you in case the first one doesn't work out.   Don't misunderstand me, I feel positive the first one will 100% percent guarantee the ruling (court decision), but just in case there are two other motions we feel you need to study in some point in time.   I don't mean the first motion, it's fine and has been prepared properly all the way.   I say file the first motion.   Any additional help you need let me know․  The address on Rolling Meadows is where you can have any personal mail delivered.”“My attorney came today and left me a message from my friend.   Don't worry about the premature stuff—just you take care of these cases and get out of that hole․  I think you should use those motions fast as possible so that you'll have a chance to have them heard in court before Xmas maybe?   You know how to handle all that stuff.   Whatever you say is fine with me.”“You rest easy and know everything will turn out real good for you.   Wonder what the temperature is in the South of France?   I understand everything concerning the motion.   Good luck.”“Good news?   I'll bet on it with my last dollar.   I understand and that sounds good.   It will be interesting to see how the motion turns out.   Right on.   Life sentence without parole?   Bull Shit!   Will never happen.   What is the temperature in Peru?   Nice, I bet․  Keep me posted on the motion and you take care․  P.S. ․  If the first motion wasn't good enough to get the job done, let me know and the other two will be sent to your attorney with necessary explanations.   That first one ought to get you the results you seek.”  (All emphases in originals.)

5.   There is a piece of lined paper dated May 28, 1982, stating:  “[The attorney]:  “Would you please see that Tom Martinez gets this letter.   Respectfully B.”   There is also a letter dated May 27, 1982, which informs petitioner that Bill answered his last letter, “sent it to your attorney in L.A., but never heard back.”   The letter tells petitioner that if he still needs a brief it will be sent right away, but is otherwise innocuous.   It appears that this correspondence may have been a test run to see what could be passed through the attorney.At the August 30, 1982, hearing the prosecutor requested that the attorney be ordered to read any mail that came to him for petitioner.   The court stated that it had no power to make such an order.   The attorney stated that no mail would be transmitted through him and the prosecutor and the court both indicated their satisfaction with his assurance.

6.   There is nothing in the record to suggest that petitioner or his counsel attempted to schedule the hearing any earlier.

7.   We judicially note that August 30, 1982, was a Monday.   Thus petitioner had a full court hearing within three court days following suspension of his rights.  (See Wilson v. Superior Court, 21 Cal.3d 816, 827, n. 13, 148 Cal.Rptr. 30, 582 P.2d 117.)

8.   In Illinois v. Allen, supra, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, the defendant's disrespectful and disruptive conduct in the courtroom resulted in forfeiture of both his right to represent himself and his right to be present at his trial.

STEPHENS, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur.