PEOPLE v. SHEPARD (1980)

On July 15, 1978, appellant was an invited guest at a party at the residence of Scott Patterson. After numerous uninvited persons joined the gathering and Patterson had asked them to leave, appellant engaged in separate fights with two of the interlopers. In his first altercation, appellant was soundly thrashed. Unconvinced concerning the import of this result, or at least undeterred, he then encountered his second opponent, one Robert Burton. Shortly before inception of this contest, a general melee had begun among most of the remaining partygoers. As police cars approached the scene, appellant, according to the victim, struck at and stabbed Robert with “something” in his hand, which Robert felt to be a knife. Appellant then ran down Patterson's driveway toward the back of the property and was ultimately captured by pursuing police in the next block. At that time he was wearing an empty knife holder or case with snap open on his belt.

Appellant was convicted by a jury of assault by means of force likely to produce great bodily injury and with a deadly weapon, a knife, in violation of Penal Code section 245(a). On January 29, 1979, after his motion for new trial was denied, proceedings were suspended and probation was granted for three years on condition, inter alia, that he spend the first 180 days in county jail and that he pay a fine of $750.

On this appeal it is maintained appellant received ineffective assistance of counsel privately retained in the preparation and trial of his case and that the evidence presented to the jury is insufficient to support the judgment of conviction (order granting probation). The first of these contentions is simultaneously urged through appellant's petition for writ of habeas corpus, which following its filing on January 25, 1980, we ordered deferred for separate decision concurrently, with the appeal.

For the reasons hereinafter set out, we affirm the judgment and deny the petition.¹

Our Supreme Court's decision in People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, while announcing a new rule to be applied in ascertaining whether a criminal defendant has been afforded his constitutionally guaranteed right to counsel,² contemplated that:

“[t]he burden of proving a claim of inadequate trial assistance is on the appellant. (People v. Camden, supra, 16 Cal.3d [808] at p. 816, [129 Cal.Rptr. 438, 548 P.2d 1110.] Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.

Once an appellant has met these burdens, the appellate court must look to see if the record contains any explanation for the challenged aspect of representation. If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.

In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.

(7) Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of.”

(Id., at pp. 425-426, 152 Cal.Rptr. at p. 739, 590 P.2d at p. 866.)

It was likewise anticipated that:

“To promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for habeas corpus.” (Ibid., at pp. 427-427, fn. 17, 152 Cal.Rptr. at p. 740, 590 P.2d at p. 867.)

By the same token, our highest tribunal, in an earlier decision recognized that:

“In California the appellate courts as well as the superior courts exercise original habeas corpus jurisdiction. As stated above, however, appellate courts are not equipped to have prisoners brought before them and to conduct testimonial hearings on disputed issues of fact.”

(In re Hochberg (1970) 2 Cal.3d 870, 873-874, 87 Cal.Rptr. 681, 683, 471 P.2d 1, 3.)

and observed in terms of procedure that:

“[m]any issues cognizable on habeas corpus can be resolved on the basis of documentary evidence (e. g., In re McVickers (1946) 29 Cal.2d 264, 280, 176 P.2d 40) or stipulated facts (e. g., In re Bailleaux, (1956) 47 Cal.2d 258, 259, 302 P.2d 80) without bringing “the body” of the petitioner before the court. Therefore, when it initially appears from the allegations of a habeas corpus petition filed in an appellate court and from “any matter of record pertaining to the case” (Cal.Rules of Court, rule 60) that the petitioner is entitled to relief, this court and the Court of Appeal developed the practice of ordering the custodian to show cause why the relief sought should not be granted. (See 1 Cal.Criminal Law Practice (Cont.Ed.Bar 1964) p. 395, § 9.63; Witkin, Cal.Criminal Procedure (1963) § 821.) Many superior courts, especially in counties where there are large state prisons and therefore many habeas corpus filings, have developed a similar practice. “The order to show cause directs the respondent custodian to serve and file a written return. If the order to show cause is made returnable before the appellate court and issues of fact requiring an evidentiary hearing are framed, the court may appoint a referee to conduct the hearing and report his findings and conclusions. The court then makes its independent examination of the evidence taken before the referee and giving respect to but not being bound by his findings and conclusions, makes its own determinations of fact. (In re Branch (1969) 70 Cal.2d 200, 203, fn. 1, 74 Cal.Rptr. 238, 449 P.2d 174.)

If the order to show cause is made returnable before the superior court and that court denies the writ of habeas corpus, the petitioner may again apply to the reviewing court for the writ, and the reviewing court will make its independent examination and appraisal of the evidence that was taken in the superior court. (See In re Smiley (1967) 66 Cal.2d 606, 611 et passim, 58 Cal.Rptr. 579, 427 P.2d 179.)”

(Id. at p. 874, 87 Cal.Rptr. at p. 684, 471 P.2d at p. 4.)

As it has become increasingly apparent that the issue of inadequate representation by trial counsel may be raised in large numbers of cases, some concern has been expressed whether judicial economy is served by initially accommodating such inquiries in appellate courts, when no disadvantage to the convicted defendant is apparent from having his claims on the subject presented first to the trial court and since, as noted above, hearings on such petitions will take place there in any event. (See In re Lower (1979) 100 Cal.App.3d 144, 161 Cal.Rptr. 24; see also People v. Adams (1980) 101 Cal.App.3d 791, 802, 162 Cal.Rptr. 72; People v. Perry (1979) 100 Cal.App.3d 251, 265, 161 Cal.Rptr. 108; see generally In re Hillery (1962) 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759.)

So it has been remarked that:

“If, in the opinion of appellate counsel the record shows inadequacy of trial counsel, the matter can be handled by direct appeal. If not, if should be handled by writ of habeas corpus.

The latter seems preferable because it not only affords the defendant the opportunity of presenting matters outside the record, but it also affords the accused attorney an opportunity to be heard.

In rare cases the inadequacy of trial counsel is apparent on the record. However, in most cases it is simply a guessing game and not a very fair guessing game at that. It would be considerably more effective in a case such as this to allow the defendant to make his charges against his attorney, and then let the attorney answer those charges. Fundamental principles of due process call for no less.

Pope strongly suggests that the proper vehicle for testing the capabilities and competence of trial counsel is by writ of habeas corpus. We agree. Additionally, we suggest that the writ should more properly be filed in the trial court. That court really has the feel of the case and is in a much better position to evaluate the competency of counsel than is this court after a cumbersome reference to the trial court and a review of the record in this court.”

(In re Lower, supra, 100 Cal.App.3d 144, 152-153, 161 Cal.Rptr. 24, 29.)

Our own views are to similar effect, except that we are persuaded it would be preferable, as respondent urges, not only to encourage initial filing of habeas corpus proceedings in the trial court but as well to decline to hear claims of inadequate representation of counsel on appeal in the absence of consent thereto by the People. Thus, since it is only the rare case where a defendant will obtain reversal on this ground based upon the record and since otherwise the same question may be pending in both the trial and the appellate court, considerations of judicial economy and efficiency as well as fairness would indicate the desirability of effectively compelling such matters to be disposed of in the first instance where they would ultimately be dealt with in any event, i. e., in the trial court.

Appellant's claims on appeal respecting his trial lawyer are illustrative. It is maintained that, inter alia, that counsel failed to call as witnesses appellant's brother, who allegedly previous to the stabbing incident had borrowed the knife customarily worn by appellant and left it some 100 miles away from the assault scene, and one Tommy Ochoa, who allegedly was an eyewitness to the fact appellant had removed himself before Robert was wounded; that counsel did not acquaint himself with the characteristics of Robert's wound and did not request a medical report respecting it nor question its nature through expert testimony; that only four of some fifteen to twenty-five witnesses at the scene were subpoenaed to testify; that no point was made to the jury respecting certain inconsistencies in Robert's testimony; and that certain testimony elicited by the defense from police tended to show appellant was consciously fleeing from them.

In each instance, it can hardly be said “there simply could be no satisfactory explanation” for trial counsel's action or failure to act. (People v. Pope, supra, 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 740, 590 P.2d 859, 867.) Accordingly, the case, on that point, should be affirmed on appeal. But it may well be that an evidentiary hearing on the habeas corpus writ would disclose the propriety of a different conclusion. Whether such is the case is a matter to be decided in the trial court. (In re Hillery, supra, 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759.)

Finally, appellant's contention respecting insufficiency of the evidence is without merit. In spite of the fact no knife was discovered, there can be no doubt Robert was in fact stabbed by some instrument which he “felt” to be a knife; that he maintained appellant was his assailant; that a witness heard Robert exclaim he had been stabbed; that appellant was known on previous occasions to carry a knife; that on the date in question he was wearing an empty open sheath where his knife was ordinarily kept; and that after Robert was injured and the police arrived appellant departed the scene through back yards and over fences. The jury could have justifiably reached its conclusion on less evidence than this. (See People v. Perry (1979) 100 Cal.App.3d 251, 161 Cal.Rptr. 108.)

The judgment (order granting probation) is affirmed. The petition for writ of habeas corpus is denied.

FOOTNOTES

1.  Our earlier determination to defer consideration of the petition and to decide it at the same time as though separately from the appeal was premised upon matters of procedural policy, from which we depart only insofar as is necessary to indicate in this opinion the reasons for our disposition of the petition.

2.  In Pope, counsel was appointed. The question whether the holding of that case would apply to voluntarily retained counsel was resolved affirmatively in People v. Frierson (1979) 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, where it was observed:“Although Pope involved the issue of appointed counsel and we did not expressly determine whether its new standard would apply to voluntarily retained counsel as well (23 Cal.3d at p. 421, fn. 9, [152 Cal.Rptr. 732, 590 P.2d 859]), we have previously anticipated the answer in holding that ‘If in the trial of a serious charge an appointed attorney or even a chosen one grossly neglects the preparation of the case the effect is to deny the defendant the right to counsel. [Citation.]”’“Thus, we reaffirm the essence of our earlier expressions in Rose [ [ [ [Wilson v. Rose, (9th Cir. 1966) 366 F.2d 611] and McDowell [People v. McDowell, 69 Cal.2d 737, 73 Cal.Rptr. 1, 447 P.2d 97] in holding that Pope's new standard for measuring the effectiveness of counsel applies equally to both appointed and retained counsel. (Accord, People v. Cooper (1979) 94 Cal.App.3d 672, 681, 156 Cal.Rptr. 646.) Of course, the fact that counsel is retained remains an ‘important’ consideration in measuring the effectiveness of counsel's representation.”(Id., at pp. 162, 163, 158 Cal.Rptr. at p. 291, 599 P.2d at p. 597.)

ROTH, Presiding Justice.

FLEMING and BEACH, JJ., concur. Hearing denied; BIRD, C. J., dissenting.