Caffey, In re
Citation | 68 Cal.2d 762,441 P.2d 933,69 Cal.Rptr. 93 |
Decision Date | 25 June 1968 |
Docket Number | Cr. 11761 |
Court | United States State Supreme Court (California) |
Parties | , 441 P.2d 933 In re Algea CAFFEY on Habeas Corpus. |
Algea Caffey, in pro. per., and Earl Klein, Beverly Hills, under appointment by the Supreme Court, for petitioner.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard H. Cooper, Deputy Atty. Gen., for respondent.
Petitioner is confined in the California Men's Colony at Los Padres under a judgment of conviction of violating Health and Safety Code section 11500 (possession of heroin) entered upon his plea of guilty in the San Francisco Superior Court on February 18, 1959. He admitted two prior federal narcotics convictions, and the court sentenced him to imprisonment for not less than two nor more than twenty years (former Health & Saf.Code, § 11712). 1 In this habeas corpus proceeding he challenges the validity of his prior convictions.
Petitioner's first prior conviction was entered on June 30, 1943, in the United States District Court for the Western District of Texas upon his plea of guilty to the charges of unlawful importation of marijuana into the United States without paying the annual registration tax (former 26 U.S.C. § 3234(a), now § 4755(a), unlawful acquisition of marijuana without paying the transfer tax (former 26 U.S.C. § 2593(a), now § 4744), 2 and unlawful concealment and transportation of marijuana after importing it without invoice or declaration (former 19 U.S.C. § 1593(b), now 18 U.S.C. § 545). Petitioner's second prior conviction was also for unlawful acquisition of marijuana without paying the transfer tax. It was entered on April 19, 1950, upon his plea of guilty in the United States District Court for the Southern District of Texas.
The records of the federal courts state that petitioner appeared with counsel at the proceedings in 1943 and 1950. Petitioner alleges and offers to prove, however, that if counsel appeared for him in either proceeding, the appearance was a mere formality and that he was therefore denied the right to effective legal representation. Petitioner first applied for a writ of habeas corpus in the Superior Court of San Luis Obispo County. On June 23, 1967, that court ordered that petitioner be returned to the San Francisco Superior Court for an evidentiary hearing on the validity of the prior convictions. (See In re Woods (1966) 64 Cal.2d 3, 11, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce (1966) 64 Cal.2d 11, 14, 48 Cal.Rptr. 694, 409 P.2d 918; In re Tucker (1966) 64 Cal.2d 15, 21, 48 Cal.Rptr. 697, 409 P.2d 921.) On August 24, 1967, the San Francisco Superior Court ordered that petitioner be returned to San Luis Obispo County 'for further hearing.' On September 15, 1967, the superior court of that county denied the petition on the basis of the records in the federal courts. Neither court held an evidentiary hearing. 3
We issued an order to show cause why petitioner should not have an opportunity in an evidentiary hearing to prove that his prior convictions were obtained in violation of his right to counsel. He now contends also that he was convicted under federal statutes that violate the Fifth Amendment guarantee of the privilege against self-incrimination. He invokes principles recently announced by the United States Supreme Court in Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States (1968) 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906; and Haynes v. United States (1968) 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, which involved the impact of the Fifth Amendment on federal gambling and firearms legislation.
We have concluded that petitioner is entitled to a hearing to determine whether he was denied the right to counsel at the proceeding in 1943. We have also concluded that the federal statute (former 19 U.S.C. § 1593(b), now 18 U.S.C. § 545) prohibiting concealment and transportation of marijuana imported without invoice or declaration does not violate the Fifth Amendment. If petitioner's right to counsel was not violated when he was convicted of violating that statute in 1943, that conviction would be a valid prior conviction sufficient to support his sentence under former Health and Safety Code section 11712. 4
If the trial court determines that petitioner's right to counsel was violated at the 1943 proceeding, it must then conduct a hearing on petitioner's allegations that he was denied the right to counsel at the 1950 proceeding, when he was again convicted of unlawful acquisition of marijuana without paying the transfer tax. If the court determines that the right was also denied at the 1950 proceeding, it must disregard both prior convictions in redetermining petitioner's sentence. Only if the court finds that petitioner was not afforded the right to counsel in the 1943 proceeding, but was afforded that right in the 1950 proceeding, will it be necessary to reach the questions whether the federal statute prohibiting the unlawful acquisition of marijuana without paying the transfer tax violates the Fifth Amendment and whether petitioner may properly assert the privilege against self-incrimination on habeas corpus following a plea of guilty at trial. 5 Further consideration of the questions relating to the validity of the Marijuana Tax Act will therefore be deferred until after the determination of the right to counsel issue. Meanwhile, the United States Supreme Court may have settled the issue as to the validity of that statute in the light of the Marchetti, Grosso, and Haynes cases. 6
Although these decisions cast substantial doubt on the validity of convictions for violations of the Marijuana Tax Act (see dissenting opinion of Chief Justice Warren, Grosso v. United States, 390 U.S. 77, at p. 83, 88 S.Ct. 709), they afford no reason to doubt the validity of convictions for smuggling marijuana. It is true that petitioner's conviction in 1943 for unlawful concealment and transportation of marijuana rests on his failure to declare and invoice it upon importation. 7 Such declaration, however, in fact prevents the crime of smuggling from occurring. 'The purpose of requiring the goods to be declared is to prevent their importation or to make sure they are not imported without a duty being paid.' Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 141.) Moreover, declaration of possession of marijuana at the port of entry into the United States does not expose the declarant to prosecution for untaxed possession within the United States under 26 United States Code section 4744 or 4755. 'Had (petitioner) invoiced the marihuana at his first opportunity, he would have been relieved of it by the Customs agents, and thus would not have smuggled it, and would not have been In possession of it within the United States.' Thus the 'harassment of a particular class of persons or the obtaining of evidence in order to prosecute them' is not the purpose of the declaration requirement. (Mansfield, op. cit. supra, 1966 Sup.Ct.Rev. at p. 141; see also concurring opinion of Justic Brennan, Grosso v. United States, supra, 390 U.S. 72 at p. 73, 88 S.Ct. 709.) We therefore conclude that petitioner's 1943 conviction under former 19 United States Code section 1593b did not violate his privilege against self-incrimination.
Whether that conviction properly supports an increase in punishment under former Health and Safety Code section 11712 therefore turns on the determination of the right to counsel issue. The minutes of the United States District Court for the Western District of Texas, El Paso Division, state that on June 30, 1943, petitioner and a codefendant appeared 'each in proper person and by W. H. Fryer and Jos. L. Dunigan, their counsel, respectively,' and pleaded guilty to the charges in the indictment filed June 21, 1943. Judge Charles A. Boynton then sentenced petitioner to four years' imprisonment. The 'Memo of Proceedings' for the date of trial also contains the notation, 'W. H. Fryer, Attorney for Caffey.' In his return to the order to show cause, the Attorney General states that Mr. Fryer is deceased and Mr. Dunigan has no independent recollection of the case.
In his verified petition petitioner alleges that he is a Negro and that courts in the southern states customarily meted out 'kangaroo court' justice to Negroes. He offers to prove by sworn eyewitness testimony that he first appeared in court on June 15, 1943, and pleaded guilty without counsel and without waiving counsel. He alleges that on June 30, 1943, the following events occurred:
(Emphasis and statement in parentheses are petitioner's.) The truth of these allegations can be determined only in an evidentiary hearing.
If petitioner proves that he was denied...
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