Branch, In re

• Decision Date: 21 January 1969
• Docket Number: Cr. 11483
• Court: California Supreme Court
• Parties: , 449 P.2d 174 In re Robert A. BRANCH on Habeas Corpus.

Page 238

74 Cal.Rptr. 238

70 Cal.2d 200, 449 P.2d 174

In re Robert A. BRANCH on Habeas Corpus.

Cr. 11483.

Supreme Court of California,

In Bank.

Jan. 21, 1969.

Robert A. Branch, in pro. per., and Thomas W. Bell, Jr., Sacramento, under appointment by the Supreme Court, and MacDonell, Bell & Sandberg, Sacramento, for petitioner.

Thomas C. Lynch, Atty. Gen., Roger E. Venturi, Edward A. Hinz, Jr., and Daniel J. Kremer, Deputy Attys. Gen., for respondent.

PETERS, Justice.

This petition involves petitioner's claim of inadequacy of his representation in that his counsel failed to investigate his claim that prior to or during the trial he had told his counsel that he had information that other named convicts had committed the offense with which he was charged. Based on the entire record, we find that petitioner did not tell his counsel of these facts prior to or during the trial, and that the information given the attorney just prior to sentence was given under such circumstances that the attorney reasonably believed the testimony would be perjured. We also find that the attorney acted reasonably in not further investigating the claimed facts, and that under the record, we should not find that petitioner is innocent.

The problem arises under the following circumstances:

In August 1961, when petitioner was 18 years old, authorities found two knives in the cell in which he was imprisoned at Soledad Correctional Training Facility. On January 5, 1962, he was sentenced for violating Penal Code, section 4502 (possession of a deadly weapon by a prisoner) after conviction by a jury. On February 2, 1966, this court denied a prior habeas corpus petition alleging denial of the rights set forth in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. On March 8, 1967, we denied a petition for hearing after the Court of Appeal on motion of the Attorney General dismissed petitioner's appeal from an order denying a petition for Coram nobis based on facts quite similar to those herein alleged.

Upon the filing of the instant petition for writ of habeas corpus, we issued an order to show cause and appointed counsel for petitioner. We also appointed a referee to hold an evidentiary hearing on certain questions of fact bearing upon petitioner's request for relief. The Attorney General has filed a brief in which he raises objections and exceptions to the referee's report.

The claim in the present petition, as already pointed out, is that petitioner is entitled to habeas corpus relief on the ground that his trial counsel failed to investigate a possible defense--the alleged willingness of two other prisoners to admit that they were responsible for the knives being in petitioner's cell--and that this failure denied him the effective assistance of counsel to which he was constitutionally entitled. On the basis of a confession of another to the crime he urges that he is innocent. The pertinent facts, based in part on findings of the referee, ¹ are as follows:

At petitioner's trial, Correctional Officer Ed Leonard testified that when he 'shook down' petitioner's cell on August 28, 1961, he found two knives concealed therein. Paul Rendleman, captain of the officers at Soledad at this time, testified that he ordered the search of Branch's cell in connection with a fight which had occurred near his cell the previous day. He had reports that Branch was seen at or near the fight scene, that a knife had been seen by an officer who broke up the fight, and that it was Branch who had the knife that was seen. Captain Rendleman further testified that he talked with Branch in his office after the knives were found, that Branch admitted to him that the knives belonged to him, that he had made them with a piece of file, and that he liked having knives under his pillow (where one of the two was found) as he always had outside prison.

Branch thereafter testified at trial on August 28 that he had had no knives, knew of none in his cell, never saw the knives in question until the preliminary hearing, and never had a file. When asked on cross-examination whether he knew of any reason why Officer Leonard or Captain Rendleman might lie about him, he stated 'No, sir, but I can prove that they have told false up here * * * if I had the opportunity.' ² Asked specifically if he could prove that Captain Rendleman was lying, Branch responded 'That's right'; asked if he had evidence, he replied 'Yes, I can bring people down here.' When the court then ordered a short recess so that Branch could talk to his attorney, Mr. Rosendale, the attorney commented that he would appreciate a recess 'so that I can talk to Mr. Branch and make sure that he understands and I understand him, and I can also ask him some questions what he's referring to, maybe with respect to collateral things.'

After the recess, Rosendale asked Branch on redirect: 'Before the recess, Mr. Branch you indicated that testimony concerning some items that Captain Randleman made (sic) would be different from what you yourself would testify to or other people would testify to. With regard to that, did you have reference to the so-called fight that occurred the night before?' Branch answered, 'That's what I meant, yes.' Further questions by Rosendale elicited answers from Branch indicating that he had also been referring to Captain Randleman's testimony regarding Branch's confinement, after the knives were discovered, in a 'holding cell' and his treatment there. Under subsequent questioning by Rosendale, Branch stated that he had not told Captain Rendleman that he owned the knives; however, he did not testify that he knew of any person who could corroborate his story by testifying that such person had planted the knives in Branch's cell without Branch's knowledge.

The foregoing portions of testimony at petitioner's trial bear upon two crucial and interrelated questions regarding which this court ordered the referee to take evidence in connection with the habeas corpus petition. The first is what information, if any, did petitioner have prior to his conviction regarding the involvement of other inmates--and their identities--in placing knives in his cell? The second is what information relative to his own and others' involvement in placing knives in his cell did petitioner communicate to his trial attorney, Rosendale, and when? ³

The referee found that prior to his conviction in 1961 for violation of section 4502 of the Penal Code petitioner was informed that a fellow inmate known to him as 'Tex' (and whose actual name was Carl H. Boggess) 'would admit that he had placed the knives in the cell of petitioner without the latter's knowledge.' In view of the evidence upon which this finding rests, it appears that if petitioner was so informed before his Conviction, he was also informed prior to the Trial itself. This finding is largely based on the testimony of petitioner and that of Boggess.

Branch testified at the hearing that a few days after August 28, 1961, he was informed that Boggess would, as Branch put it, 'clear this matter up' if Branch were taken to court. Boggess testified both that he did place the knives in petitioner's cell on August 28, 1961, ⁴ and that upon hearing that Branch was being tried by the prison disciplinary committee for possession of the knives he (Boggess) 'sent a message to him that if he were to be tried (in court) to notify me and I would cop to the plea.' This latter aspect of Boggess' testimony was corroborated by the testimony of Wilburn Matthews, a trustee in the isolation area at Soledad on August 28, that he received on or about that date a message from Boggess, '(a) very good friend of mine,' to the effect that 'if Mr. Branch was called to court, he would straighten the situation up.'

Boggess also testified that about the same time he sent the message to Branch he told a guard and an 'adjustment center counselor' at Soledad that he had placed the knives in Branch's cell. He claimed that the officer thought his story 'was rather humorous and disregarded it' while the counselor 'just ignored it more or less.' Tending to undermine the validity of this testimony is the fact that on May 15, 1964, in an affidavit before a correctional counselor at San Quentin, Boggess stated that he had not told anyone of his involvement in the knives incident before coming to San Quentin State Prison, which was apparently well after petitioner was convicted and sentenced. ⁵

The primary evidence which arguably casts some doubt on the referee's first basic finding--that Branch knew prior to his conviction that Boggess would admit placing the knives in his cell--is the very evidence which the referee relied upon in making his second basic finding, that 'It is not true, as contended by the petitioner, that he communicated this information to his attorney before or during the trial.' Rather, 'Following his trial and prior to the sentencing on January 5, 1962, the petitioner told his attorney he could get two fellow convicts to testify they had placed the knives in his cell.'

Rosendale, Branch's court-appointed attorney at trial, testified before the referee that prior to the trial Branch 'indicated to me that the knives were his,' that Branch told him that he had told Captain Rendleman the knives were his, ⁶ and that Branch stated that he had sharpened one of the knives 'on some rough concrete on, I believe, it was a floor of the machine shop.' He further testified that he did not recall Branch making, before or during the trial, any reference to the existence of other inmates who were involved in placing the knives in his cell or who would testify to that effect. According to Rosendale, it was only after Branch was convicted that he 'sought alternatives' and 'indicated to me * * * that he thought he could get a couple guys to come up and testify for him. It was obvious from the manner in which he discussed this * * * (that) there was a favor that was...