Finn, Application of

• Decision Date: 07 November 1960
• Docket Number: Cr. 6721
• Citation: 356 P.2d 685,54 Cal.2d 807,8 Cal.Rptr. 741
• Court: California Supreme Court
• Parties: , 356 P.2d 685 In the Matter of the Application of Charles C. FINN on behalf of George C. Finn for a Writ of Habeas Corpus.

Page 741

8 Cal.Rptr. 741

54 Cal.2d 807, 356 P.2d 685

In the Matter of the Application of Charles C. FINN on behalf of George C. Finn for a Writ of Habeas Corpus.

Cr. 6721.

Supreme Court of California, In Bank.

Nov. 7, 1960.

Rehearing Denied Dec. 7, 1960.

George C. Finn, in pro. per.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and William E. Doran, Deputy City Atty., Los Angeles, for respondent.

WHITE, Justice.

Charles C. Finn petitions for a writ of habeas corpus on behalf of his brother George C. Finn, claiming that George is illegally detained by the Chief of Police of the City of Los Angeles following George's convictions by a jury of three violations of the Vehicle Code.

George, hereinafter designated the defendant, was arrested by peace officers on May 19, 1958, and charged with violations of the Vehicle Code, sections 237, subdivision (a) (registration not properly displayed), 619 (one headlight out) and 621, subdivision (b) (no illumination of license plate) ¹. At the time of the arrest one of the arresting officers was driving a police vehicle which had no light illuminating its license plate, and another officer was driving a police vehicle which did not display a registration in the driver's compartment. The defendant thereupon asserted that he was making a citizen's arrest of those officers but was ignored both at the scene of the violations and at police headquarters where George was taken when he refused to sign the citations. See Veh. Code, § 736 ².

The defendant, upon arraignment, pleaded not guilty and demanded a jury trial as to each of the three counts. On four occasions the trial was continued on the defendant's motion, and on a fifth occasion he failed to appear and a new trial date was set. On April 16, 1959, eight months after the original trial date, the causes were assigned by the master calendar judge to Municipal Judge Byron J. Walters for trial notwithstanding the defendant's motion for yet a further continuance. It further appears that the defendant had subpoenaed, as his witnesses, the chief of police and four members of the police commission. The city attorney moved, before the master calendar judge, that the subpoenas be quashed on the ground that the named persons had no personal knowledge of the matters relating to the violations. After argument, wherein the defendant sought to prove that such witnesses would establish that the sections of the Vehicle Code were discriminately applied as to him, the motion to quash was granted.

At the trial the prosecution called one of the arresting officers as its sole witness. The officer testified that he observed the defendant driving an automobile with but one headlight turned on, between sundown and sunup; that he stopped the automobile and observed further that the light illuminating the license plate at the rear of the vehicle was not lighted. He asked the defendant for the registration and the defendant was unable to produce it. The defendant testified in his own behalf, relating the circumstances of his arrest and his asserted arrest of the peace officers. On cross examination he refused to answer questions relating to the lack of proper lighting and the display of registration on the automobile which he was driving, on the ground that his answers might tend to incriminate him. The evidence relating to his guilt of the violations charged was, therefore, uncontradicted.

Following the jury verdicts of guilty on each of the three counts, the defendant moved for an order in arrest of judgment and for a new trial. He argued, as grounds in support of his motions, that he had been denied the equal protection of the law in that the sections of the Vehicle Code relating to the lighting of vehicles had been applied discriminately as to him, and that he had not been permitted to subpoena witnesses. The motions were denied. Judge Walters sentenced the defendant to five days in the city jail on each of the three counts, the sentences to run consecutively. The defendant gave oral notice of appeal, and on May 8, 1959, within the statutory time, filed a notice of appeal. On May 13 he filed a proposed statement on appeal.

On January 15, 1960, a date regularly set for settlement of the statement on appeal after five continuances at the defendant's request, the court ordered the cause submitted, the defendant not then being in court, or represented. On February 9, 1960, the trial judge made the following order in open court: 'Defendant having failed to present any semblance of a Statement of proceedings on Appeal except the document denominated 'Grounds of Appeal from Order Denying Motion in Arrest of Judgment and Motion for a New Trial; and from the Judgment.' And it appearing that hearing on Settlement of Statement on Appeal was set for June 9, 1959 at 10:00 A.M. and on motion of Defendant for alleged good cause, said hearing was continued from time to time until January 15, 1960, and Defendant having failed to appear then or since, It is ordered that the record as it stands at this date be transmitted to the Appellate Department of the Superior Court.' The defendant was not in court nor represented when this order was made.

It appears that the record, including the defendant's proposed statement on appeal, was then transmitted to the appellate department of the superior court without having been certified by the trial judge. On defendant's motion in the appellate department, an order was made on April 11, 1960, remanding the cause to the trial court for the reason that defendant's proffered statement on appeal did not bear the certification of the trial judge. In its order of remand, the appellate department suggested that the trial judge certify the statement, or in the alternative, order that certain allegedly 'scurrilous' matter be stricken therefrom or that the whole statement be stricken, and that the defendant be given further time in which to prepare a new statement.

It appears from the clerk's minutes that thereafter, on May 5, 1960, in open court with a deputy city attorney and reporter present but in the absence of the defendant the court, deeming some of the grounds scurrilous, ordered the defendant's statement on appeal stricken from the record, and granted the defendant ten days in which to file a proper proposed statement on appeal. A copy of the minute order was mailed to the defendant. The defendant filed a notice of appeal from that order (not, however, within rule time), but failed to file a new proposed statement in the time allowed, nor has he filed a proposed statement as to his purported appeal from the order of May 5 striking the original statement.

The so-called scurrilous matter consists of claims in the proposed statement on appeal that Judge Walters was dishonest. In support thereof the defendant cited Wilson v. Walters, 19 Cal.2d 111, 119 P.2d 340, and Wilson v. Walters, 66 Cal.App.2d 1, 151 P.2d 685, wherein it appears in the first cited case that Judge Walters, as a defendant in a civil suit, was charged with liability based on fraudulent representations.

The appellate department of the superior court, in a memorandum opinion dated July 25, 1960, noted that the original proposed statement on appeal set forth only the grounds of appeal without any record in support thereof, and that the court then had no record before it except the clerk's minutes. On that record it affirmed the judgment, dismissed the appeal from the order in arrest of judgment on the ground that the order was not appealable (People v. Plywood Mfrs. of California, 137 Cal.App.2d Supp. 859, 871, 291 P.2d 587), affirmed the order denying the motion for a new trial, and dismissed the appeal taken from the order of May 5 striking the proposed statement on appeal for the reason that the notice of appeal was not filed within rule time.

On August 3, 1960, the remittitur was returned and filed. The defendant was notified to appear on August 9, 1960 in satisfaction of judgment. The petition alleges that the defendant thereupon explained to Judge Walters' clerk that he was required to appear in a Los Angeles Federal District Court on August 9, and asked for a continuance. He was informed that Judge Walters would not consent to a continuance. The defendant and the petitioner appeared in the district court on August 9, and, acting pursuant to a bench warrant issued by the municipal court for the defendant's arrest, county marshals mistakenly arrested the petitioner, who was thereafter released. The following day, the petitioner alleges, in the corridor of the Federal Building while the defendant was talking to some newsmen, he was attacked from behind by four county marshals who manhandled him, injuring his knee, shackled him and carried him off. The petitioner claims that no warrant was served upon the defendant. Based on the foregoing allegations an order to show cause was issued directed to the chief of police of the City of Los Angeles, and the defendant ordered released on his own recognizance pending final determination of these proceedings.

The petitioner claims, among other things, that the defendant was denied the equal protection of the laws because the police officers were not arrested and prosecuted for similar claimed Vehicle Code offenses as charged against defendant. However, the prosecution of one guilty person while others equally guilty are not prosecuted is not a denial of equal protection of the laws. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; People v. Oreck, 74 Cal.App.2d 215, 168 P.2d 186; People v. Sipper, 61 Cal.App.2d Supp. 844, 142 P.2d 960. Nor is the mere laxity in enforcement of the laws by public officials a denial of equal protection. People v. Gordon, 105 Cal.App.2d 711, 234 P.2d 287.

The petitioner also claims that the quashing of defendant's subpoenas was improper. The defendant is entitled to compel the attendance of...