Cowans, In re

• Decision Date: 24 June 1970
• Docket Number: Cr. 12789
• Citation: 2 Cal.3d 733,87 Cal.Rptr. 499,470 P.2d 635
• Court: California Supreme Court
• Parties: , 470 P.2d 635 In re Franklin D. COWANS on Habeas Corpus.

Page 499

87 Cal.Rptr. 499

2 Cal.3d 733, 470 P.2d 635

In re Franklin D. COWANS on Habeas Corpus.

Cr. 12789.

Supreme Court of California,

In Bank.

June 24, 1970.

Albert D. Silverman, Canoga Park, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., John C. Hamilton and James L. Markman, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

On June 9, 1964, petitioner, upon his plea of guilty, was convicted of assault with intent to commit murder (Pen.Code, § 217). The Court denied probation and ordered petitioner's imprisonment. We issued an order to show cause upon petitioner's allegations that his plea of guilty resulted from confessions obtained without advising him of his right to remain silent and to counsel, and from the coercion exercised by the district attorney and petitioner's court-appointed counsel. We appointed the Honorable Victor Gillespie, Judge of the Superior Court of Imperial County, to act as referee.

Judge Gillespie conducted an evidentiary hearing and submitted his report. He found that petitioner made incriminating statements to Sergeant McCarty of the Ventura Sheriff's Department, without having first been advised of his right to counsel or to remain silent. He also found that petitioner gave incriminating statements to two court-appointed psychiatrists without having been advised of his right of silence. Judge Gillespie found, however, that petitioner's plea of guilty was neither the product of such incriminating statements nor of coercion exerted by either counsel or by any law enforcement officials. The record supports the referee's findings; it demonstrates that the guilty plea resulted from the competent advice of petitioner's counsel. Counsel explained to petitioner that if he did not plead guilty to an assault with intent to murder he probably would be convicted of attempted murder, a more serious offense, ¹ and might also be convicted on additional assault charges. We therefore discharge the order to show cause.

About 11:15 p.m. on April 19, 1964, Officers Hendrix and Clinton arrived at a residence near Fillmore, Ventura County; petitioner's mother, upon admitting them, told them that petitioner has been threatening her with a knife. Deputy Miller arrived a few minutes later. The mother, Mrs. Cowans, signed a complaint; the officers arrested petitioner. Holding a hunting knife in one hand and an opened pocket knife in the other, petitioner confronted the officers, announcing: 'You sons-of-bitches aren't going to take me.' At that point petitioner's brother-in-law struck petitioner with a chair. Starting toward Officer Hendrix with the knives and saying, 'I'll kill you, you son of a bitch,' petitioner fell, and Deputy Miller struck petitioner with his gun. The officers then took petitioner to a hospital for examination.

Early the next day Deputy Sheriffs Hubbard and Steeno arrived at the hospital. Informed that X-rays showed that petitioner had incurred no fractures, they took petitioner to their car to transport him to the county jail. As Hubbard was opening the car door, petitioner grabbed Hubbard's pistol. When, in the ensuing encounter, the gun pointed toward Hubbard, petitioner pulled the trigger; Hubbard inserted the web of his hand between the hammer and the firing pin, preventing the gun from discharging. Hubbard and Steeno then subdued and handcuffed petitioner.

After petitioner's arrival at the jail Deputy Sheriff McCarty questioned him. This interrogation took place before the Supreme Court decision in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; petitioner was not advised of his constitutional rights. We have no record of the interrogation. Petitioner an McCarty give somewhat inconsistent accounts of it; the referee found that petitioner made incriminating statements relating to the incident which led to the original arrest, but no incriminating statements relating to the assault upon Deputy Sheriff Hubbard.

The district attorney filed a three-count complaint in the municipal court charging assaults with intent to murder Hubbard and Steeno, and attempted escape. Petitioner waived the preliminary hearing. The district attorney then filed a two-count information in the superior court, omitting the attempted escape charge. To this information petitioner pleaded not guilty by reason of insanity. The court appointed Doctors Patterson and Bugh to examine petitioner. During these examinations petitioner gave both psychiatrists incriminating statements concerning the struggle with the two deputies but was not advised of his right to remain silent.

After the filing of the psychiatric reports, petitioner asked leave to enter a plea of not guilty, which the court granted. The district attorney then filed a second complaint in the municipal court, in seven counts, charging petitioner with the attempted murder of Hubbard, with various assaults upon Steeno, a Mrs. Bean, Mrs. Cowans, Hendrix, and Miller, and with attempted escape. The municipal court held petitioner to answer on three counts: attempted murder of Hubbard, assault with a deadly weapon on Hendrix, and attempted escape. He pleaded guilty to assault with intent to commit murder upon Hubbard, a lesser included offense within the charge of attempted murder. The court dismissed the charge of assault upon Hendrix, ² denied probation, and sentenced petitioner to prison.

Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, held that when a suspect in custody and under interrogation is denied the opportunity to consult with counsel, incriminating statements elicited during that interrogation may not be used against him. In People v. Dorado (1965) 62 Cal.2d 338, 351, 42 Cal.Rptr. 169, 398 P.2d 361, we held that the right to counsel at such an interrogation does not depend upon a request by the defendant. The principle of Escobedo, as explained in Dorado, applies to all cases in which the conviction was not final as of the date of the decision in Escobedo, June 22, 1964. (In re Lopez (1965) 62 Cal.2d 368, 372, 42 Cal.Rptr. 188, 398 P.2d 380; People v. Rollins (1967) 65 Cal.2d 681, 691, 56 Cal.Rptr. 293, 423 P.2d 221.) In the instant case the court rendered its judgment on June 23, 1964, the day after the rendition of Escobedo, and therefore petitioner's statements to Sergeant McCarty could not properly have been admitted into evidence.

When petitioner made the incriminating admissions to the court-appointed psychiatrists, he was represented by counsel, but his counsel did not appear at the psychiatric interviews. Since the right to the presence of counsel at such interviews was not established until In re Spencer (1965) 63 Cal.2d 400, 410, 46 Cal.Rptr. 753, 406 P.2d 33, ³ we conclude that petitioner did not knowingly and intelligently waive that right. (In re Spencer, supra, 63 Cal.2d 400, 401--411, 46 Cal.Rptr. 753, 406 P.2d 33.) In addition, the referee found that petitioner had not been advised of his right to remain silent and to refuse to speak to the psychiatrists. (See People v. Strong (1913) 114 Cal.App. 522, 530, 300 P. 84.) We conclude that the petitioner's admissions to the psychiatrists were also inadmissible to prove petitioner's guilt.

The referee, however, found that petitioner's plea of guilty was free and voluntary, and that finding, although not conclusive, is entitled to great weight. (In re Imbler (1963) 60 Cal.2d 554, 562, 35 Cal.Rptr. 293, 387 P.2d 6.) The referee's holding finds support in the testimony of Mark Dees, petitioner's counsel in the 1964 proceedings, who, at the evidentiary hearing, explained the reason why he advised petitioner to plead guilty: 'It appeared from the psychiatrists' report * * * that * * * we could not prevail with * * * a defense of insanity. I discussed with him the possibility of getting a private psychiatrist * * * to testify to his insanity. We determined, because of the lack of finances and just the fact that he probably was not insane, that this would not be successful. * * * In turning then to the facts of the case it was my opinion, because the police officers would make a far better witness * * * because he had no witnesses on his behalf other than himself, that his chances of prevailing, of not being convicted would be very slim indeed. * * * I felt he would make a terrible witness on his own behalf. I felt his belligerency, his self-pity would show through. I felt we were facing a jury in Ventura County which would be far more prosecutionminded than one in some more urban jurisdiction. I saw simply nothing in the case that would give us any * * * reasonable chance whatsoever * * * of his being acquitted. I felt the case quite frankly was a sure loser, and I used that phrase in talking to him. * * *'

Petitioner's attorney further explained his reasons for counselling petitioner as to the advisability of working out a plea. 'It seemed to me, particularly after the attempted murder count was filed, that the best thing I could do was to work out some sort of arrangement with the District Attorney whereby he would plead guilty to one count of assault with a deadly weapon and all the other charges, including those that arose out of the altercation in his parents' house before the assault on the police officers, would be dismissed. And that is just the arrangement we did work out.'

At the evidentiary hearing Sergeant McCarty testified that petitioner's statements had related solely to the incidents at the residence; petitioner had said that he could not...