Chester v. People of State of California

• Decision Date: 27 January 1966
• Docket Number: No. 19773.,19773.
• Citation: 355 F.2d 778
• Parties: Jean L. CHESTER, Appellant, v. The PEOPLE OF the STATE OF CALIFORNIA, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

355 F.2d 778 (1966)

Jean L. CHESTER, Appellant, v. The PEOPLE OF the STATE OF CALIFORNIA, Appellee.

No. 19773.

United States Court of Appeals Ninth Circuit.

January 27, 1966.

Paul C. Jess, Sonoma, Cal., for appellant.

Thomas C. Lynch, Atty. Gen. of California, Doris H. Maier, Asst. Atty. Gen., Sacramento, Cal., for appellee.

Before HAMLEY and BROWNING, Circuit Judges, and MATHES, District Judge.

HAMLEY, Circuit Judge:

Jean L. Chester, a California state prisoner, appeals from a district court order denying, without hearing, his application for a writ of habeas corpus. A certificate of probable cause was entered by a judge of this court, thereby enabling this court to entertain the appeal. See 28 U.S.C. § 2253 (1964). Chester appeared pro se in the district court but counsel has been appointed to represent him on this appeal.

Chester argues that the district court erred in failing to issue a show cause order to determine whether his allegations of fact are disputed, and in failing to hold an evidentiary hearing as to any disputed facts. It is also contended that if reliance is placed upon state court findings as to any disputed facts, the district court erred in accepting such state court findings without first examining the state court record.

The principles to be applied in considering this argument are well established. The district court should not, in lieu of an evidentiary hearing, rely on a state court finding of fact, without first ascertaining that the state court evidentiary hearing was full and fair. Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 9 L.Ed.2d 770. The adequacy of the state court hearing may be established only by a concession to that effect by the applicant or by examination of the state court record, an examination of a state court appellate opinion being insufficient. Jennings v. Ragen, 358 U. S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296; Pike v. Dickson, 9 Cir., 323 F.2d 856, 859.

One ground for relief asserted in Chester's application is that at the time of the preliminary examination in justice court on June 16, 1947, on a charge of violating California Penal Code, § 4502 (possession of a deadly weapon by a state prisoner) he did not have an attorney and no one told him that he was entitled to be represented by an attorney.

As to this ground the district court accepted the findings of the Supreme Court of California in a state habeas corpus proceeding brought by Chester. In re Chester, 52 Cal.2d 87, 338 P.2d 431. The California Supreme Court determined, on the basis of findings prepared after an evidentiary hearing, by a referee appointed by that court, that Chester was not advised of his right to counsel at that preliminary examination, but that he was fully advised of such right at his arraignment in the justice court on May 28, 1947, and that Chester waived counsel at that arraignment.

Since the district court thus accepted as true, Chester's allegations that he did not have counsel at the preliminary examination and was not advised of such right, it was not necessary for the court, as to this ground, to hold an evidentiary hearing or call for and examine the state court record. The question remains whether, in view of the facts so established, the district court erred in holding that this asserted ground for relief is without merit.

An accused has a constitutional right to representation by counsel at a preliminary examination in a state court if, under the facts of the particular case, the examination is a critical stage in the criminal proceeding. Wilson v. Harris, 9 Cir., 351 F.2d 840, decided October 19, 1965.

The record of the preliminary hearing, which was designated as an exhibit and attached to the application for a writ, shows that at the preliminary examination in question two witnesses testified for the state, one of them being cross-examined by Chester. The defendant did not testify, or offer any testimony, nor did he enter a plea or make any statement tending to incriminate himself. The cross-examination which he conducted did not uncover any fact disadvantageous to him. The state court record before us further shows that on June 21, 1947, Chester was arraigned in superior court, at which time he pleaded guilty. Chester did not allege that this plea was in any way induced by the proceedings at the preliminary hearing, or by any disadvantage to him in not having legal representation at that hearing.

Under the stated facts the preliminary examination on June 16, 1947 in justice court was not a critical stage of the criminal proceeding and the failure to provide counsel or advise Chester of his right to counsel at that hearing did not deprive him of a constitutional right. See Wilson v. Harris, supra. Accordingly, the district court did not err in rejecting this ground for relief.¹

The memorandum and order of the district court indicates that the court thought that this was the only ground upon which relief was sought. This is not correct since Chester advanced two additional grounds in his application, namely: (1) at the time of his arraignment in the state superior court on the section 4502 charge, Chester pleaded guilty and was sentenced without the assistance of counsel, and without waiving his right to counsel; and (2) he pleaded guilty to that charge on the representation of the district attorney, conveyed to him by his aunt, that if he would do so, he would not have to spend any more time in prison in addition to the time he was already serving for statutory rape.

The district court has not passed upon these additional questions, the second of which was not discussed in the California Supreme Court opinion in In re Chester. It is therefore necessary to remand the case so that these additional grounds for relief may be considered.

In his brief on appeal, Chester advances several additional reasons for reversal which were not presented in his district court application for a writ of habeas corpus.² Except where necessary to prevent a manifest miscarriage of justice, no such showing being made here, an appellant may not urge as a ground for reversal a theory which he did not present in the trial court. See Thomason v. Klinger, 9 Cir., 349 F.2d 940, decided August 6, 1965; Daugharty v. Gladden, 9 Cir., 257 F.2d 750, 758. Accordingly we do not reach these additional arguments on this appeal. In the remanded proceedings, however, Chester may amend his application to assert additional grounds for relief concerning which he has exhausted his state remedies.

Reversed and remanded for further proceedings consistent with this opinion.

BROWNING, Circuit Judge (concurring in part, dissenting in part):

I agree with the opinion of the Court so far as it remands the case for consideration of appellant's allegations that he was denied the right to counsel at arraignment and that his plea was improperly induced. I would expand the hearing on remand to include the issues raised by appellant's allegation that the state denied him counsel at preliminary examination.

The relevant facts, conceded or alleged, are these. Appellant was born October 21, 1928. He left school in the eighth grade. In December 1945, when he was seventeen years of age, he was committed to a state institution on a charge of statutory rape. In August 1946 he was transferred to San Quentin Prison. Four months later, on December 11, 1946, prison officials removed him from a line of prisoners awaiting lunch, searched him, and found a knife in his coat pocket. Six months later, on June 16, 1947, appellant was brought before a Justice Court for preliminary examination on a complaint charging a violation of section 4502 of the Penal Code of California, which prohibits a prisoner from possessing, or having custody and control of, a sharp instrument or other potential weapon. He was then eighteen. His only prior court appearance was in juvenile court. He was not familiar with court procedure and he was ignorant of his rights. He was not represented by counsel and was not advised of his right to counsel.

The state called two witnesses at the preliminary examination. A prison official testified that appellant was an inmate of San Quentin on the date of the alleged offense. A correctional officer testified that he removed appellant from the "noon line," searched him, and found a knife in the pocket of his coat. A knife alleged to be the one found was received in evidence without objection. Appellant attempted to cross-examine the officer regarding the particular pocket in which the knife was found. He called no witnesses, and did not testify on his own behalf. The court concluded that there was sufficient cause to believe that appellant had violated section 4502, and ordered him held to answer.

On June 21, 1947, five days after the preliminary examination, appellant was arraigned in Superior Court. He was not represented by counsel. He pleaded guilty, and was immediately sentenced to imprisonment for from five years to life. He was later charged with the offense of assault by a prisoner serving a life sentence, a violation of California Penal Code § 4500. He was convicted of this offense, and as a result will remain incarcerated for the balance of his natural life.

Describing the episode in the prison line, appellant states, "We were all standing in the long line, and when the older inmates realized that there was a shakedown someone put the knife in my pocket and warned me not to squeal or he would `get me.' He said, `They'll go easy on you kid.' Before I had a chance to protest or say anything, the guard had taken me out of line and had me take off my coat, and immediately found the knife." Appellant asserts that he was too frightened to tell the truth, but instead told the judge who sentenced him a story suggested by the older prisoners, that is, that he had the knife for protection against homosexual attacks. He states that the advice which he took in the absence of counsel was wrong and...