Banks, In re

• Decision Date: 22 March 1971
• Docket Number: Cr. 14221
• Citation: 482 P.2d 215,93 Cal.Rptr. 591,4 Cal.3d 337
• Court: California Supreme Court
• Parties: , 482 P.2d 215 In re Fred BANKS on Habeas Corpus.

Page 591

93 Cal.Rptr. 591

4 Cal.3d 337, 482 P.2d 215

In re Fred BANKS on Habeas Corpus.

Cr. 14221.

Supreme Court of California In Bank.

March 22, 1971.

Fred Banks, in pro. per., and Thomas J. Klitgaard, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Edward P. O'Brien, Deputy Atty. Gen., for respondent.

PETERS, Justice.

Petitioner, Fred Banks, has been in prison since his 1962 conviction on two counts of robbery and one count of attempted robbery in the second degree. (Pen.Code, § 211.) His case appears before us after a long and tortuous history, including three appearances before the United States Supreme Court. ¹

PETITIONER'S COUNSEL ON APPEAL

In this habeas corpus proceeding, petitioner contends that he was effectively denied, despite his vigorous protests, the assistance of counsel on appeal. We agree.

After conducting his own defense at trial, petitioner was convicted on August 9, 1962. He requested the appointment of counsel to represent him, and counsel was appointed by the Court of Appeal on November 13, 1962. Counsel obtained several extensions of time. The last extension expired March 21, 1963. On August 13, 1963, the clerk of the Court of Appeal was constrained to admonish counsel that he had not yet filed a brief in the case. On October 25, 1963, the clerk phoned counsel to request speedy filing of the brief.

On February 24, 1964, a year and a quarter after he was appointed, counsel finally filed a 23-page brief. The brief mentions only two cases. On point raised demonstrated complete ignorance of when the information was filed and when the trial commenced. The strongest ground for claiming error in the trial record, given the state of the law in early 1964, related to denial of counsel at trial. Yet Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, is nowhere mentioned in counsel's brief. Although making a number of additional claims of error, counsel nowhere marshalled the evidence to show that such claimed errors would be prejudicial in view of the record as a whole. The most obvious conclusion to be drawn from reading the brief is that counsel gave it no thought whatsoever, but instead retyped suggestions submitted to him by petitioner, a layman. ²

Petitioner sought further relief in propria persona. His efforts were rewarded. (Banks v. California, Supra, 382 U.S. 420, 86 S.Ct. 622, 15 L.Ed.2d 499.) On remand for consideration in light of Griffin v. California Supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, petitioner requested the appointment of different counsel. The Court of Appeal denied petitioner's request. It informed counsel that he might brief and argue the case on remand. Counsel did not submit brief, motion, or any explanation for his failure to do so. Nor did he appear to argue the case or give reason why he felt argument unnecessary. So far as appears, counsel did not communicate with the court in any way whatsoever. The court refused petitioner's request to argue the case before the court himself. The Attorney General submitted a four-paragraph letter in which he claimed there existed 'an overwhelming factual basis in favor of conviction.'

The Court of Appeal, without benefit of brief or argument by defense counsel, proceeded to decide the case, affirming the conviction on the basis of 'abundant evidence of appellant's guilt.'

Petitioner again sought further relief pro se, again prevailed. The Court of Appeal was once again asked to consider its opinion, this time in light of Chapman v. California, Supra, 386 U.S. 18, 23--24, 87 S.Ct. 824, 17 L.Ed.2d 705. (Banks v. California, Supra, 387 U.S. 92, 87 S.Ct. 1505, 18 L.Ed.2d 588.) The Attorney General stated that he did not believe further argument was necessary, and rested upon his prior arguments to the court. The Attorney General, having previously submitted argument on the issue of prejudice, could afford this position; defense counsel, who had failed to challenge the original argument, again failed to communicate in any way with the court or with petitioner. The Court of Appeal once again denied detitioner's request for appointment of different counsel, and once again refused to allow him to argue pro se before the Court of Appeal. In a brief opinion, the Court of Appeal adopted its former judgments in full and declared its belief, 'based upon the conclusive evidence of his guilt, that such error was harmless beyond a reasonable doubt.'

Douglas v. California (1963) 372 U.S. 353, 356--357, 83 S.Ct. 814, 9 L.Ed.2d 811, holds that denial of counsel to an indigent accused on his first (and only) appeal as of right is an invidious discrimination violative of the Fourteenth Amendment. Anders v. California (1967) 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, gave expanded meaning to the right to counsel by holding that the 'constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of Amicus curiae.' We thereafter specified the duties of appointed counsel, adopting specific rules regarding the performance of counsel and procedures for withdrawing from a case in which counsel concludes he cannot in good faith represent his client. (People v. Feggans, 67 Cal.2d 444, 447--448, 62 Cal.Rptr. 419, 432 P.2d 21.) Finally, in the recent case of In re Smith, 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969, we held that appointed appellate counsel must not only perform as an advocate, but must perform competently as well.

Although defendant's right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, he is entitled to relief where the record clearly shows that the first appointed counsel is not adequately representing him. (People v. Marsden, 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44, quoting People v. Mitchell, 185 Cal.App.2d 507, 512, 8 Cal.Rptr. 319.) The lawyer appointed for petitioner had taken 15 months to file his first brief. Counsel had twice failed to argue--either in oral or written form--when invited to do so by the Court of Appeal, even though his client had won a significant reprieve. Counsel violated the quintessence of Anders and Feggans when he had expressly stated his belief to petitioner that the case had no merit, refused to act as an advocate for petitioner in the Court of Appeal, yet did not write the then-proper (In re Nash, 61 Cal.2d 491, 495, 39 Cal.Rptr. 205, 393 P.2d 405) 'no-merit' letter to the court announcing his withdrawal from the case.

Surely the slightest dilatoriness on the part of counsel upon the second remand should have been enough cause for the court to question whether counsel still represented petitioner, and if so, whether his performance was such as to give petitioner good cause to have new counsel appointed.

In any event, counsel's failure to argue at any time the specific issues raised by the United States Supreme Court on the two remands shows that petitioner did not have effective assistance of counsel. ³ Here, as in In re Smith, Supra, 3 Cal.3d 192, 198, 90 Cal.Rptr. 1, 4, 474 P.2d 969, 972, 'petitioner would have fared better had his attorney withdrawn in favor of a pro se brief from petitioner, * * *.' In effect, petitioner was not represented by counsel and was thus clearly denied his right to assistance of counsel. ⁴

Because petitioner was effectively denied the assistance of counsel in crucial stages of his statutory appeal, we must grant petitioner's writ of habeas corpus. (Douglas v. California, Supra, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Anders v. California, Supra, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; In re Smith, Supra, 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969.)

Penal Code, section 1484, requires that in habeas corpus proceedings we 'dispose of such party as the justice of the case may require, * * *.' Where the case comes before us solely on the issue of denial of counsel on appeal (particularly in a pro. per. petition), we ordinarily reinstate the appeal and remand to the Court of Appeal to reconsider its decision with the aid of effective advocacy by appellate counsel. (E.g., In re Smith, Supra, 3 Cal.3d 192, 203, 204, 90 Cal.Rptr. 1, 474 P.2d 969.) However, competent counsel for both petitioner and respondent have now fully briefed and argued the merits of the appeal before this court, and, in view of the history of the case, conservation of scarce judicial resources warrants our passing upon the merits of the appeal in accordance with the provisions of section 1484 of the Penal Code.

THE APPEAL On the night of May 4, 1962, between 11 and 11:30 p.m., one attempted robbery and two robberies of liquor stores took place in the same Oakland neighborhood. The description and modus operandi of the robber given by all witnesses strongly indicate that the attempted robbery and the robberies were committed by the same person. The robber was described as having on a sportcoat, hat, and yellowish shirt. In all three instances the robber walked into the store, went directly to the person at the cash register and, without preliminary conversation, demanded money. In all three instances the robber had his right hand in his jacket pocket pointed so as to simulate a gun.

At 11 the robber entered Vince's Liquor Store. He walked to the rear cash register where Jow, an employee, was working. He pointed the hand in his pocket and asked for all the money. Wong, a co-owner of the store, heard the demand. He took a .38 pistol from under the counter, reached over, and struck the robber's hand. Ascertaining that the robber did not have a gun, Wong told him to put his hands up. The robber refused, cursed Wong, and fled from the store.

Jow and Wong discussed the identifying characteristics of the robber while waiting for the police to arrive. Jow had had a...