HOUGH v. << (1943)

The petitioner seeks his release from the custody of the warden of the State Prison at San Quentin after his pleas of guilty to two counts of murder upon which the death sentence was pronounced against him.

The ground upon which his petition for release is based is that the judgments of conviction are illegal and are violative of the Fourteenth Amendment of the Constitution of the United States, and deprive petitioner of his life without due process of law. His main complaint is that his pleas of guilty were secured and induced by improper and illegal means, which render his conviction void and of no legal effect. As will more fully hereinafter appear, petitioner was represented during the pendency of his action in the trial court and on the appeal of said action to this court by a representative of the Public Defender of the county. While his said appeal was pending, he changed attorneys and his newly acquired attorney represents him in the present proceeding.

Petitioner was indicted for the murder of his wife and her male companion on June 13, 1942, at Long Beach in the county of Los Angeles. The original indictment was in two counts. By count one he was charged with the murder of his wife, Inez Hough, and by count two, with the murder of Frederick L. Culp. To each of these two counts he pleaded not guilty and not guilty by reason of insanity. At a later date an amended indictment was filed against him in which he was charged with the same two offenses of murder and with a prior conviction of a felony. Upon filing the amended indictment petitioner withdrew his two former pleas of not guilty, and pleaded guilty to the two charges of murder and admitted the prior conviction of a felony.

He now contends, in the first place, that his counsel was misled by the trial judge and the prosecuting officers of the county by assurances that if petitioner would withdraw his pleas of not guilty and plead guilty to the amended indictment, the sentence of death would not be imposed. The case against petitioner was before us on appeal, and the factual situation therein involved is set forth in some detail in our opinion therein this day filed. People v. Hough, 144 P.2d 581.

The record before us in the present proceeding fails to show that either the trial judge or anyone connected with the district attorney's office or with the prosecution of the case against petitioner made any promise or commitment, directly or indirectly, to petitioner or to his counsel in consideration of his withdrawal of his pleas of not guilty and of his entry of pleas of guilty. Deputy District Attorney Sten was assigned by the district attorney's office to represent the prosecution, and Deputy District Attorney Hunt was assigned to assist Mr. Sten in the prosecution of the case. In the numerous conferences had between them and petitioner's counsel, Deputy District Attorney Sten informed the latter that the district attorney's office would not consent to life imprisonment, or any lesser punishment than the death penalty. The trial judge who took part in some of those conferences ‘hoping to get a satisfactory disposition of this case, stated that if the District Attorney would be satisfied with life imprisonment, it would be satisfactory to the Court.’ The trial judge, however, at no time promised or intimated to petitioner or his counsel that he would impose the penalty of life imprisonment in opposition to the recommendation of the district attorney's officer.

The case after some continuances was set down for trial for August 11th. The day before, the trial judge called into his chambers the petitioner's attorney and the two deputy district attorneys, informed them that the case could not be tried on the 11th, due to an unfinished case then before the court, and suggested to counsel that the case be continued to the next day, August 12th. This was agreed to, and at the same meeting Mr. Sten informed the court that he intended to file an amended indictment charging petitioner with a prior felony conviction in addition to the two charges of murder. On the morning of August 11th, the case was called with counsel for all parties present. The amended indictment was filed, charging the two crimes of murder and the previous conviction of a felony. The petitioner was arraigned on these charges and the case continued to the following day, August 12th. On the evening of August 11th, petitioner's counsel informed the trial judge that the petitioner would withdraw his pleas of not guilty by reason of insanity and not guilty to each count of the amended indictment, and plead guilty and admit his prior conviction.

Before the opening of court the next morning, August 12th, the trial judge called petitioner's counsel and Mr. Sten and Mr. Hunt into his chambers and made the following statement to petitioner's counsel: ‘Before you proceed in this matter I don't want you to be misled by any of the conversations you have had with me, or by any conversation that you have had with anyone else, or by anything that you might have heard from anyone, because if I try this case I may have to pronounce the death penalty, and I want you to know this in advance so you won't plead the defendant guilty with any expectations. We have a jury panel present and you can have a jury trial.’ To this statement petitioner's counsel replied: ‘All I want to know is, do you start this case with an open mind?’ In answer to this question Judge Still (the trial judge) states in his affidavit: ‘I told him that I did, and he [petitioner's counsel] said: ‘I am going to proceed as I have advised you.’' Immediately following this meeting, court convened with petitioner and his counsel present. Petitioner withdrew his former pleas of not guilty and not guilty by reason of insanity and pleaded guilty to the two counts of murder contained in the amended indictment and admitted his prior felony conviction. Thereupon the court proceeded to take evidence to determine the degree of the crime and to fix the punishment. This hearing consumed the greater part of three days. At its close petitioner waived time for sentence. Thereupon the court sentenced him to suffer the death penalty.

It will thus be seen that there is absolutely no showing that either the trial judge or the district attorney offered any promise or inducement to petitioner's attorney or to petitioner to withdraw his pleas of not guilty and enter pleas of guilty. There is no attempt to show that any person whatever connected with the prosecution of petitioner made any promise to either petitioner or his counsel or misled either of them as to the entry of petitioner's pleas of guilty. Petitioner leans heavily upon certain statements made to his attorney by Deputy District Attorney Hunt. He refers to him as the ‘veteran prosecutor,’ and a lawyer with much more experience in the prosecution of cases than Mr. Sten. But the record shows without conflict that Mr. Sten was in charge of the prosecution of the case against petitioner and that Mr. Hunt was assigned to assist Mr. Sten, but was without any authority whatever to bind the district attorney's office in any matter in reference to the case. The record further shows without dispute that Mr. Hunt at no time made any promise or inducement to petitioner or his counsel respecting petitioner's pleas in said action. Mr. Hunt did state to petitioner's counsel at various times before petitioner entered his pleas of guilty, that in his opinion a sentence of life imprisonment would satisfy the ends of justice, but, as just stated, he at no time promised directly, indirectly, or impliedly, that he would ask or recommend to the court a sentence of life imprisonment in case pleas lof guilty were entered. Petitioner's counsel well knew of Mr. Hunt's position in the case and that he had no authority to bind the district attorney's office respecting any matter involved in the case and Mr. Hunt, realizing his subordinate position, never purported to do so. In the conferences before the trial judge he expressed his views respecting the punishment to be administered in the case, and that was all. According to the trial judge ‘Mr. Hunt took only a negligible part in the conversation.’ The attempt to show that petitioner or his attorney was misled by any statement or act on the part of Mr. Hunt finds no support whatever in the record before us.

Petitioner's second contention rests upon the following state of facts: At the time of petitioner's arraignment upon the original indictment he was without any attorney and without funds to employ an attorney to defend him. For this reason the court appointed the public defender of the county to represent him. Mr. E. J. Hovden, a regularly appointed and acting deputy in the office of the public defender, was assigned to conduct the defense of petitioner, and he acted as petitioner's attorney during the entire proceedings in said action up to and including the time that judgment was pronounced against him. It is petitioner's contention that the public defender is an officer of the county, and represents the state in the prosecution of criminal actions, in the same light and to the same extent as the district attorney, or other officer of the state or county connected with the prosecution of criminal cases. With this contention we cannot agree. Petitioner cites no authority in support of his contention and none has come to our attention.

The office of public defender was created by an act of the Legislature enacted in 1921. See Stats.1921, p. 354, chap. 245. By section 5 of this act the duties of such an officer are defined in the following terms, so far as pertinent to this proceeding: ‘Upon request of the defendant or upon order of the court, the public defender shall defend, without expense to them, all persons who are not financially able to employ counsel and who are charged with the commission of any contempt, misdemeanor, felony or other offense. He shall also, upon request, give counsel and advice to such persons, in and about any charge against them upon which he is conducting the defense, and he shall prosecute all appeals to a higher court or courts, of any person who has been convicted upon any such charge, where, in his opinion, such appeal will, or might reasonably be expected to, result in the reversal or modification of the judgment of conviction.’ While the act has been amended on two occasions, Stats. 1927, p. 1886; Stats.1931, p. 2566, the quoted portion of section 5 has not been changed in any respect. Section 6 of the act, both in its original and amended form, provides for the appointment by the board of supervisors of a sufficient number of deputies to properly conduct the office of public defender and fixes their salaries.

Under this statute when the public defender is appointed to represent a defendant accused of a crime, he becomes the attorney for said defendant for all purposes of the case and to the same extent as if regularly retained and employed by the defendant. The judge of the trial court has no more authority or control of him than he has of any other attorney practicing before his court. The public defender is free from any restraint or domination by the district attorney or of the prosecuting authorities. He is as free to act in behalf of his client as if he had been regularly employed and retained by the defendant whom he represents. Were it not so his client would not be afforded the full right ‘to have assistance of counsel for his defence’ which the Constitutions, both state and federal, give to one accused of crime. Const.Cal. art. 1, § 13; Const.Fed. Amend. 6. With such plenary powers given a public defender when appointed to defend one accused of crime, it necessarily follows that no act of his in advising his client or in defending the latter upon the charge against him can be considered in any different light than if such act were performed by an attorney regularly employed and retained by the defendant. In no sense can it be held that the prosecuting officers of the county are in any respect charged with the consequences of such an act. The contention therefore that the petitioner is not bound by his pleas of guilty, on the ground that in so pleading he was misled by the advice of the public defender acting as his attorney, is not well taken.

The further contention is made by petitioner that his attorney was so negligent in handling his case, both in informing him of its progress and in advising him in respect to his pleas to the amended indictment, that he was deprived of the rights vouchsafed to him by the Constitution. This contention is based upon petitioner's claim that Mr. Hovden failed to fully advise him as to the attitude of the trial judge and the district attorney's office respecting the punishment which might be imposed upon him in case he pleaded guilty to the charges, and furthermore that Mr. Hovden stated to petitioner: ‘I guarantee you that if you plead guilty you won't get gassed.’

As to the first of these two charges, that is, that Mr. Hovden failed to advise petitioner of the attitude of the trial judge and the district attorney respecting the sentence he would receive by pleading guilty, the affidavit of Mr. Hovden annexed to and made a part of the petition and offered by petitioner as a traverse to the return to the writ, states: ‘It is well to state here that the substance of these various conversations with Deputy District Attorneys Sten and Hunt, the police officers and the court were communicated to and discussed with the defendant.’ Again later on in this affidavit Mr. Hovden states: ‘On the adjournment of the court I consulted with the defendant concerning the amended indictment and the decision of the day before that pleas of guilty would be entered remained the same.’ This consultation between Mr. Hovden and petitioner took place on August 11th after the amended indictment had been filed.

Furthermore, in the petition herein which, together with the affidavit of Mr. Hovden, is offered as a traverse to the return to the writ, it is stated, referring to the various conferences had between Mr. Hovden and the trial judge and the two deputy district attorneys, ‘that he [Mr. Hovden] communicated the result of these conferences to the defendant from time to time.’ Again it is stated in the petition that after the conference held on the morning of August 12th, ‘Mr. Hovden took the remarks merely to mean that the trial court did not wish it to appear that he had made a positive commitment, but not that he had receded from his expressed intentions to fix a degree and a penalty less than the death penalty. [We have already shown that the trial court at no time expressed an intention to fix the degree less than the death penalty.] Bearing all these matters in mind Mr. Hovden then advised the defendant that the court had given assurances that a punishment other than death would be inflicted.’

In no place in his petition for the writ does petitioner state or contend that his attorney did not inform him of what took place at the various conferences between him, the court, and the prosecuting officers, or that his counsel failed to inform him of the statement of the trial judge, made on August 12th, just before the opening of court, that he (the trial judge) might have to impose the death penalty. However, in his affidavit annexed to his traverse to the return, petitioner stated that Mr. Hovden did not at any time tell him of the conference with the trial judge held on August 12th just before the convening of court, in which the trial judge stated to Mr. Hovden that he did not want Mr. Hovden to be misled by any conversation he had had with him, (the trial judge) or with Mr. Hunt, This statement appears to be in direct conflict with those quoted above from the petition and the affidavit of Mr. Hovden, in which it is stated that Mr. Hovden consulted with petitioner and informed him of what took place in the various conferences between himself, the trial judge and the two deputy district attorneys. Had such a claim been set up in the petition, it would have given the respondent an opportunity to answer it in the return. This statement appearing for the first time in the traverse to the return is new matter and is deemed denied by respondent, and the burden of proving it is upon the petitioner. In re Collins, 151 Cal. 340, 343, 90 P. 827, 828, 91 P. 397, 129 Am.St.Rep. 122. In that case, the court said: ‘To adopt the analogy of pleadings in civil actions, the return is the complaint, the traverse is the answer; new matter set up in the traverse is deemed denied, and must be proved by the party alleging it.’

Petitioner now contends that had he known of the attitude of the trial judge as expressed at the conference held on the morning of August 12th, he would not have pleaded guilty to the two murder charges against him, and that the failure of his counsel to inform him of the result of that conference misled him and caused him to waive his right to a jury trial. We agree with petitioner that if he was misled by his attorney in entering the pleas of guilty, it was a serious matter for him and presents a situation concerning which he may well complain. However, though this matter was of extreme importance to petitioner, he does not refer to it in any manner in his petition for the writ. On the other hand, his former attorney in his affidavit annexed to the petition, states: ‘It is well to state that the substance of these various conversations with the Deputy District Attorneys Sten and Hunt, the police officers and the court were communicated to and discussed with the defendant.’ In other places in his affidavit, Mr. Hovden makes general statements to the same effect. In view of the contradictions between the statements in the petition and in the affidavit of Mr. Hovden annexed thereto with petitioner's affidavit annexed to his traverse to the return, we are unable to attach sufficient weight to the statement in petitioner's affidavit to hold that it overcomes the conflicting allegations of his petition. We are of the opinion that petitioner has not sustained the burden of proving the truth of his statement that he was misled by his attorney in entering his pleas of guilty.

Petitioner further claims that he was misled and induced to enter pleas of guilty by the following statement of his attorney: ‘I guarantee you that if you plead guilty that you will not be gassed.’ This statement is also found for the first time in petitioner's affidavit annexed to his traverse to the return, and being new matter is deemed denied and the burden of proving it is upon petitioner. The original draft of petitioner's affidavit annexed to the traverse is typewritten. It contains numberous corrections in pen and ink consisting of erasures, insertions and interlineations, including the statement alleged to have been made by Mr. Hovden: ‘I guarantee you that if you plead guilty that you will not be gassed.’ These corrections were apparently made just before the affidavit was signed and sworn to by petitioner on July 5, 1943, as they are all initialed by him. His original petition was sworn to by his attorney on May 31, 1943. As his original petition makes no mention of the fact that his former attorney assured him that he would not be gassed if he should plead guilty, it is only reasonable to assume that he did not mention that fact to his present attorney at the time he gave him the facts upon which to prepare his petition. The same situation appears to have existed some weeks afterwards when his present attorney prepared petitioner's affidavit annexed to his traverse to the return. No mention is made in the original draft of this affidavit of the alleged statement of his former attorney referred to above. It must be assumed therefore that petitioner at that time failed to make mention of this important fact to his present attorney. It seems incredible that if his former attorney had given him this assurance, that petitioner would have forgotten this important matter and only remembered it after he had twice given the facts of his case to his present attorney. In our opinion it would be too great a tax upon the credulity of this court to accept the statement of petitioner under these circumstances and accord to it a reasonable degree of verity.

We appreciate that a person in petitioner's position under sentence of death has the same right to present his case and to give his testimony as any other individual who may come before our courts, and that his evidence will be given that reasonable weight and consideration which the circumstances under which it is given will permit. However, with the sentence of death hanging over petitioner, the temptation to color, if not to falsify, his testimony would seem almost irresistible, if by so doing he could escape the impending death penalty. Testimony given under such extreme circumstances should be scrutinized with the greatest care. Petitioner had the opportunity on two previous occasions to relate this significant incident to his present attorney, which he now contends is of sufficient importance to release him from the custody of the state warden and free him from the death penalty now pending against him, and on each occasion he failed to mention it. It is hard to believe if this assurance had been given him by his former attorney, that he would not have informed his present attorney of that fact at his first opportunity; yet the only reasonable conclusion at which we can arrive from the record before us is that he failed not only once but twice to give to his present attorney this important information at the time he was stating to the latter the facts of his case. The belated statement in his affidavit inserted therein with pen and ink after the affidavit had been typed does not come to us with that assurance of its truth as to enable us to accept it as reliable and credible evidence of the facts which it purports to prove. On the other hand, it has much the appearance of a final and desperate attempt a condemned man to save his own life.

Mr. Hovden was a seasoned attorney and had had some twelve years' experience as a deputy in the office of the public defender of the county of Los Angeles. The record before us indicates that he was zealous in his efforts to protect the rights of petitioner. He could not help realizing that the evidence against petitioner presented an exceedingly strong case. It showed without any conflict that petitioner deliberately, and carrying out former threats against his wife, shot and killed her and also her companion without warning and without any justification whatever. With such evidence against petitioner, Mr. Hovden from his experience in defending persons charged with crimes could, and no doubt did, conclude that petitioner would stand slight if any chance before a jury of escaping the death penalty, and that practically the only hope of saving petitioner's life was for him to acknowledge his guilt by pleas of guilty and throw himself on the mercy of the court, hoping perhaps by saving the expense of a trial and the time of an overcrowded court, that the trial judge might conclude to mitigate the punishment to life imprisonment. That petitioner's counsel did not accomplish the result desired may have been a disappointment to him and his client, but it affords no legal ground for setting aside the pleas of guilty and permitting petitioner to have restored his previous pleas of not guilty and not guilty by reason of insanity. In view of the convincing evidence of petitioner's guilt of which Mr. Hovden is presumed to have had knowledge, and his further knowledge of the attitude of the district attorney's office and the trial judge respecting petitioner's case, coupled with his long experience as a member of the public defender's office, it seems most improbable that he would have assured petitioner that he would not suffer the death penalty if he should plead guilty. Petitioner has not sustained the burden of proof on the issue.

Petitioner also advances the contention that he was weak in body and in such a highly nervous and irrational state of mind as to render himself mentally incompetent to make a proper defense to the action against him, and that a plea of guilty by a defendant in such a mental state is no plea at all and should be set aside when the true facts are shown to the court. It is unnecessary to go into the details of petitioner's condition subsequent to his arrest and during the progress of the action against him up to and during the hearing by the court after his pleas of guilty. After petitioner had pleaded not guilty by reason of insanity at his arraignment on the original indictment, the trial court appointed three alienists to examine petitioner as to his mental condition. Two of these alienists reported that petitioner was sane both at the time he killed his wife and at the time of their examination of him. One of the three was unable to state whether or not petitioner was sane. He did report that in his opinion the defendant ‘will be legally insane at the time of the hearing set for July 28, 1942’ (the date then set for defendant's trial). As noted above, the date of trial was advanced to August 12, 1942. Whether the court should have proceeded with the case against defendant in his then mental state was within the sound discretion of the trial judge. Under the circumstances shown and particularly in view of the report of the two appointed alienists that petitioner was then sane, we are of the opinion that there was no abuse of discretion on the part of the trial judge in proceeding with petitioner's case in the manner shown by the record.

The final contention of petitioner needs even less discussion than that just considered. Petitioner in this contention claims that the court proceeded to impose upon him the death penalty without taking any evidence to fix the punishment or to determine whether there were any mitigating circumstances sufficient to justify the judgment of life imprisonment rather than death. This contention is answered by what we have previously said in this opinion, that is, that after petitioner's plea of guilty the court then proceeded to take evidence as to the degree of the crime and to fix the punishment, and that the greater part of three days was spent by the court in the hearing of said matter.

Petitioner bases his hope of sustaining this contention upon the statement of the court after petitioner had entered his pleas of guilty. This statement was made immediately after petitioner had entered said pleas and was in the following words: ‘Now the matter of fixing the degree remains. How do you want to take care of that?’ It was in answer to this question and by agreement of all parties in the case that the court spent the greater part of three days in hearing the witnesses, both of the prosecution and the defense, and at its close both parties rested, the petitioner waived time for sentence and the court pronounced its judgment. There is no showing that this hearing was limited to the question of the degree of the crime and did not include evidence for the purpose of fixing the punishment. In fact if would be difficult if not impossible to separate these two purposes for which the evidence was admitted. In endeavoring to show that the crime was not of the first degree, a defendant would introduce every item of evidence which would have the least tendency to prove that he was only guilty of some lesser offense. This would include not only evidence that he was not guilty of the higher offense, but also such evidence if any he had, which would mitigate his offense and thus influence the court in fixing his crime at less than the supreme penalty.

We find nothing in the record before us which would justify the relief sought by the petitioner. The writ is accordingly discharged and the petitioner is remanded to the custody of the warden of the State Prison of the State of California at San Quentin, California.

CURTIS, Justice.

GIBSON, C. J., and SHENK, EDMONDS, CARTER, TRAYNOR, and SCHAUER, JJ., concurred.