Ex parte Newbern

• Decision Date: 08 March 1960
• Docket Number: Cr. 6565
• Citation: 53 Cal.2d 786,3 Cal.Rptr. 364,350 P.2d 116
• Court: California Supreme Court
• Parties: , 350 P.2d 116 In re Emery NEWBERN, on Habeas Corpus.

Page 364

3 Cal.Rptr. 364

53 Cal.2d 786, 350 P.2d 116

In re Emery NEWBERN, on Habeas Corpus.

Cr. 6565.

Supreme Court of California, In Bank.

March 8, 1960.

Emery Newbern, in pro. per., and Ernest L. Graves, Los Angeles, for petitioner.

William B. McKesson, Dist. Atty., Jere J. Sullivan and Harry Wood, Deputy Dist. Attys., Los Angeles, for respondent.

WHITE, Justice.

This is a petition in propria persona for a writ of habeas corpus by Emery Newbern against whom judgments of conviction for the offenses of vagrancy and appearing in a public place in an intoxicated condition were rendered in the municipal court. Pursuant to the order to show cause petitioner has been released on his own recognizance pending the outcome of this proceeding. Counsel has been appointed for petitioner after his request therefor.

Petitioner was arraigned on August 14, 1959, in the municipal court on two misdemeanor complaints. One alleged that on or about August 12, 1959, he committed the crime of vagrancy in that he was a common drunkard (Pen.Code, § 647, subd. 11); the other alleged that on the 13th of August, 1959, he was in a public place in a state of intoxication (Long Beach Mun. Code, § 4150). He entered pleas of not guilty to each charge. Trial was thereupon set for the 18th of August, only four days after the entry of such pleas. Petitioner complained that four days were not sufficient in which to adequately prepare for trial, and requested that counsel be appointed by the court as he was without funds with which to employ counsel of his own choosing. The court appointed the public defender to represent petitioner but refused to postpone the date of trial.

Petitioner alleges that as the 15th and 16th of August were, respectively, a Saturday and Sunday he was not able to consult with counsel until the eve of the trial, the night of August 17th. He states that in the course of that meeting it was decided that a continuance was needed in order to adequately prepare to meet the charges against him. It was urged that certain witnesses and records of court were needed, and that the public defender required time in which to research the legal questions involved in the case. Accordingly when the cause was called for trial the following morning, the public defender moved for a continuance in the interests of justice, which motion was denied.

At this time, the people moved to amend the complaint charging vagrancy to allege that the crime was committed 'on or about August 13, 1959' instead of August 12. Petitioner was arraigned on the amended complaint. On his refusal to waive time in which to enter a plea, a plea of not guilty was entered for him, and the trial proceeded forthwith.

The evidence for the prosecution consisted of dockets and minute orders of petitioner's pleas of guilty to prior charges of intoxication and opinion evidence as to petitioner's intoxicated condition on several previous occasions and at the time of his arrest on the charges contained herein.

Petitioner was convicted on both charges, motions for a new trial and in arrest of judgment were denied, and judgments were entered sentencing him to two concurrent six month terms. Petitioner avers that he is in the process of perfecting appeals from the judgments but that due to his inability to raise what he terms excessive bail the sentences will have practically been served before his case is heard in the appellate department of the superior court. Under these circumstances habeas corpus is an appropriate remedy. In re Sweet, 113 Cal.App.2d 413, 414, 248 P.2d 94.

The petition is founded on alleged constitutional infirmities of the judgments of conviction, conditions of detention, and the aforesaid vagrancy statute under which petitioner was convicted.

Petitioner primarily urges that the judgments were secured by procedure violative of his right to due process of law in that the trial was held within such a short time after arraignment that he was thereby effectively deprived of his right to counsel. It is first contended that the refusal of the requested continuance after the prosecution was allowed to amend the complaint charging vagrancy resulted in a denial of due process as no time was afforded counsel for the defense to prepare to meet the amended charge. It is clear that an amendment of substance to a complaint will carry a corresponding obligation to allow the defense adequate time to prepare an 'amended defense.' People v. Hembree, 133 Cal.App.2d 733, 743-744, 299 P.2d 1043. However, the mere change in the date on which the crime is alleged to have been committed will not encompass a requirement of additional time in which to prepare a defense unless the defendant was actually misled or otherwise prejudiced by such change. See People v. LaMarr, 20 Cal.2d 705, 711, 128 P.2d 345; People v. Moranda, 87 Cal.App.2d 703, 704, 197 P.2d 394.

As such prejudice is neither alleged nor apparent from the record herein it does not appear that the change in date of the complaint required the trial court to grant a continuance. But the record reveals that petitioner was otherwise deprived of the effective aid of counsel in the instant proceedings.

Certain principles have been conclusive established in this state concerning the right to counsel. All persons accused of crime in any court in the state have a right to counsel. Cal.Const., art. I, § 13; People v. Mattson, 51 Cal.2d 777, 788-790, 336 P.2d 937. That right includes the judicial appointment of counsel in cases in which the accused is financially unable to employ counsel himself. Pen.Code, § 859. Most significant to the issues involved herein, the right encompasses more than the mere appointment; it includes the opportunity for counsel to prepare and conduct the case in a reasonably efficacious manner. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158; In re Ochse, 38 Cal.2d 230, 231, 238 P.2d 561.

As heretofore stated, counsel was appointed for petitioner but was not able to consult with him until the night before trial. This failure may not be charged to petitioner. It is the duty of the court to secure to a defendant the right to counsel with all its concomitant benefits. In re Newbern, 168 Cal.App.2d 472, 477, 335 P.2d 948. The Legislature has attempted to prevent the occurrence of the situation that arose herein by providing that a defendant must be given at least five days in which to prepare for trial after his plea has been entered. Pen.Code, § 1049. Failure to follow that statutory mandate constituted error by the trial court.

The vice of such error is demonstrated in the instant case. Overnight, counsel was required to assimilate the facts of the case, analyse them, research the applicable law and plan a defense. Affidavits accompanying the return to the order to show cause indicate that certain witnesses sought by petitioner were produced at the trial but that the documents sought to be subpoenaed by petitioner were held irrelevant, and the subpoenas therefore refused. Such assertions do not obviate the possibility that the short time given to the public defender to prepare resulted in prejudice to the petitioner. The latter claims that the public defender did not have time to do more than present petitioner's request for the allegedly necessary documents, that an adequate legal presentation, including affidavits, could not be prepared. We cannot say that the decision of the trial court that these documents were irrelevant was not the result of such inadequate preparation due to lack of time. It would be grossly unjust to penalize the petitioner for a failure of his counsel to safeguard his rights when such failure was brought about by the conduct of the state. People v. Sarazzawski, 27 Cal.2d 7, 17, 161 P.2d 934; People v. Boyden, 116 Cal.App.2d 278, 285, 253 P.2d 773.

Furthermore, substantial questions of the constitutionality of the subsection of the vagrancy statute under which petitioner was convicted were raised and, as will be seen hereinafter, are meritorious. Adequate time to research such questions as well as time to chart the course of the defense may not have been accomplished literally overnight.

The foregoing amply demonstrates that in a case such as the one now engaging our attention, forcing petitioner to trial in less than the minimum time provided by statute to prepare a defense, despite requests for a continuance, resulted in a denial of due process of law. Such defect can be reached by the writ of habeas corpus. In re McCoy, 32 Cal.2d 73, 76, 194 P.2d 531.

The scope of that writ must now be determined. In the usual case of habeas corpus granted because of illegality in the procedure leading to conviction the petitioner is, nevertheless, not immune from prosecution and will therefore be remanded to the custody of the proper local officials for new and legally proper proceedings. In re James, 38 Cal.2d 302, 313-314, 240 P.2d 596. He is not entitled to his freedom. However, in the case at bar the petitioner challenges the constitutionality of one of the statutes under which he has been convicted. We therefore deem it proper at this time to deal with that issue for the guidance of the trial court in subsequent proceedings. Petitioner urges that Penal Code section 647, subdivision 11, categorizing anyone who is a 'common drunk' as a vagrant and imposing punishment therefor, is unconstitutionally vague and violates the requirement that all laws of a general nature shall have a uniform operation. Cal.Const., Art. I, § 11.

The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. * * * 'a statute which either forbids or requires the doing of an act in terms...