Ex parte Razutis

• Decision Date: 13 June 1950
• Docket Number: Cr. 5014
• Citation: 219 P.2d 15,35 Cal.2d 532
• Court: California Supreme Court
• Parties: Ex parte RAZUTIS.

Page 15

219 P.2d 15

35 Cal.2d 532

Ex parte RAZUTIS.

Cr. 5014.

Supreme Court of California, in Bank.

June 13, 1950.

Joseph John Razutis, in pro. per., and John H. Paine, Sacramento, under appointment by the Supreme Court, for petitioner.

Fred N. Howser, Attorney General, and Clarence A. Linn, Deputy Attorney General, for respondent.

GIBSON, Chief Judge.

Petitioner, who is confined in the State Prison at San Quentin after conviction of two counts of grand theft, seeks his release from custody on the grounds that he was denied due process of law by reason of certain matters occurring prior to his trial, and that police officers suppressed evidence by intimidating witnesses and thereby deprived him of the means of establishing his defense.

The petition was filed in propria persona, and thereafter this court appointed counsel who filed a brief and argued herein on behalf of petitioner. It has been difficult to ascertain the facts because no reporter's transcript of the proceedings at the trial has been prepared, petitioner having failed to file a timely notice of appeal. There has been lodged in this court, however, the original clerk's record in the trial court which contains a certified copy of the reporter's transcript of the preliminary examination. This record shows that petitioner was convicted on two counts of grand theft, apparently on the theory that he obtained money from the complaining witness by false pretenses.

The first complaint of petitioner is that he was deprived of the right to counsel during his preliminary examination because one witness was examined out of order during the absence of petitioner's counsel. It appears that the case was set for preliminary examination at 9 o'clock in the morning and that the committing magistrate, after waiting until 10:54 for counsel to appear, took the testimony of one witness and then continued the case until 1:45 that afternoon, at which time defendant's counsel appeared and participated in the remainder of the preliminary examination without raising any objection to the prior proceedings and without making any attempt to have the witness recalled for examination or cross-examination. Thereafter, although petitioner was also represented by counsel at the trial, no motion was made to set aside the information, and there is no claim that any objection was made on this ground by motion or otherwise. It appears that counsel at the preliminary examination was aware of the fact that some proceedings were taken during his absence, and it may be assumed that counsel at the trial was also aware of this fact, since petitioner was entitled to demand a copy of the transcript of those proceedings, and no claim is made that he or his counsel did not receive one as provided in Penal Code section 870. Under these circumstances, where it appears that both defendant and his counsel had knowledge of all the facts and that they knowingly proceeded to trial without making any complaint, it is clear that there was an effective waiver of the objections. Cf. Ex parte Tedford, 31 Cal.2d 693, 694, 192 P.2d 3; Ex parte Connor, 16 Cal.2d 701, 706, 108 P.2d 10; People v. Harris, 219 Cal. 727, 729-730, 28 P.2d 906; People v. Greene, 80 Cal.App.2d 745, 747-749, 182 P.2d 576.

Complaint is also made of a number of asserted irregularities in connection with petitioner's arrest and preliminary examination, including the claim of lack of sufficient evidence to warrant holding him for trial, but none of them furnish ground for release on habeas corpus after trial and conviction. All of these objections relate to the legality of the commitment by the magistrate, and petitioner's remedy was by motion pursuant to section 995 of the Penal Code to set aside the information. No such motion was made and, accordingly, any invalidity in the proceedings prior to the commitment is deemed waived under section 996. ¹ Ex parte Tedford, 31 Cal.2d 693, 694, 192 P.2d 3; People v. Harris, 219 Cal. 727, 729-730, 28 P.2d 906; People v. Coates, 95 Cal.App.2d 78, 212 P.2d 263; In re Heinze, 116 Cal.App. 286, 288-289, 2 P.2d 561; In re Northcutt, 71 Cal.App. 281, 283, 235 P. 458.

Petitioner finally contends that his conviction resulted from the suppression of evidence by reason of the wrongful intimidation of witnesses by the police. He alleges that there were three witnesses whose testimony would have established his innocence, and that he was prevented from establishing a full and complete defense when these witnesses 'were run out of town by the police of the City of Oakland.' No further facts are alleged, but attached to the petition are copies of affidavits by petitioner's brother, Julius, and two friends, James E. Land and Thomas Curry, which state that after the preliminary examination, but before the trial, they visited petitioner's attorney and were told that the police wanted to see them; that they went to the city jail and were questioned by inspectors who told them to leave town or they would be thrown in jail; and that in view of the threats they had no choice but to return to their homes in Chicago. The affidavits of Land and Curry assert that they were 'well acquainted with the case' and did not believe that petitioner was guilty, but they do not purport to state the facts with reference to the transactions on which the charges were based or to specify the facts, to which they would testify, that would establish a lack of guilt. The brother's affidavit does not indicate that he had any knowledge of the transactions or that he could give any material evidence favorable to petitioner.

The claim that a conviction was obtained because evidence was deliberately suppressed is similar to the claim that the conviction resulted from the use of perjured testimony. In both cases the essence of the charge is that petitioner has...