Greenfield, In re

• Decision Date: 23 September 1970
• Docket Number: Cr. 5774
• Citation: 11 Cal.App.3d 536,89 Cal.Rptr. 847
• Court: California Court of Appeals Court of Appeals
• Parties: In re William A. GREENFIELD on Habeas Corpus.

Page 847

89 Cal.Rptr. 847

11 Cal.App.3d 536

In re William A. GREENFIELD on Habeas Corpus.

Cr. 5774.

Court of Appeal, Third District, California.

Sept. 23, 1970.

Hearing Denied Dec. 10, 1970.

John Beede, Davis, for petitioner.

Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Acting Presiding Justice.

In December 1966 petitioner Greenfield was convicted of second degree burglary (Pen.Code, §§ 459--461) and receiving stolen goods (Pen.Code, § 496). Because both offenses grew from a single transaction, sentence on the latter count was suspended. Greenfield appealed. On June 3, 1968, his conviction was affirmed by the Court of Appeal, Second District, Division One. (People v. Greenfield, 262 Cal.App.2d 682, 69 Cal.Rptr. 61.) The appellate court denied a rehearing and the Supreme Court denied a petition for hearing. Now an inmate at Folsom State Prison, Greenfield seeks habeas corpus, alleging constitutional infirmities in his conviction.

On August 30, 1966, Greenfield entered a department store in West Covina, selected $75.76 worth of wearing apparel and presented a stolen credit card. The store personnel became suspicious and called the police, who placed him under arrest. He had on his person a number of stolen credit cards. The facts are narrated in greater detail in People v. Greenfield, supra.

After a preliminary examination, an information was filed charging petitioner with three offenses: burglary, receiving stolen goods (i.e., the credit cards) and unauthorized use of another's credit card to obtain goods of a value exceeding $50, in violation of subdivision (b)(6) of Penal Code section 484a, the then existing credit card statute. ¹

At that point legal counsel in the case gave impetus to the first of a series of errors. Acting under Penal Code section 995, petitioner's counsel, a deputy public defender, moved the superior court to set aside Count III, the credit card violation, on the ground that defendant had not actually succeeded in obtaining the merchandise, thus 'that there was no corpus (delicti) established.' The deputy district attorney conceded the merits of the motion. Asked by the court whether an order setting aside Count III would be proper, he responded in the affirmative. The order was then made. Both attorneys and the court were seemingly unaware that section 484a( b)(6) proscribed attempts to secure merchandise as well as completed acts. ² The count should have been amended, not set aside. As we shall see the court's action removed from the case the only charge whose validity is beyond question.

Defense counsel's motion to set aside was characterized by grave errors of omission. Over three years earlier People v. Swann (1963) 213 Cal.App.2d 447, 28 Cal.Rptr. 830, had established the proposition that Penal Code section 484a was a complete statement of all credit card offenses, thus precluding a credit card offender's prosecution under the general provisions of the Penal Code (in that case, the forgery statute). The State Supreme Court denied a hearing in the Swann case. In view of the Swann decision, petitioner's trial counsel had an excellent chance of establishing invalidity of the charge of receiving stolen credit cards and an arguable case for nullifying the burglary count as well. At no time during the trial court proceedings did he attack the validity of those charges. The jury found defendant guilty of both.

The parade of error by counsel continued on appeal. When defendant's appeal was filed, another attorney was appointed to represent him. While the appeal was pending and before petitioner's brief was filed, two more legal developments occurred. In March 1967 the Supreme Court decided People v. Ali, supra. The court's opinion stated (66 Cal.2d at p. 279, 57 Cal.Rptr. at p. 350, 348 P.2d at p. 934): 'Section 484a of the Penal Code was clearly intended to codify into one section all credit card offenses formerly prosecuted under various sections of the Penal Code; and, as a result of its enactment, a person charged with an offense involving a credit card may not be prosecuted therefor under the general statutes. (People v. Swann, 213 Cal.App.2d 447, 451(2b), 28 Cal.Rptr. 830.)'

In October 1967 People v. Churchill, 255 Cal.App.2d 448, 63 Cal.Rptr. 312, was decided. Applying the Swann-Ali rationale, the court held that section 484a precluded a conviction under Penal Code section 496 for receiving stolen credit cards.

In February 1968, five years after the Swann decision, eleven months after the Ali decision, and four months after the Churchill case, petitioner's appeal brief was filed. A copy has been lodged here. Although the brief cited Hale's Pleas of the Crown, a classic eighteenth century work of British jurisprudence, it cited neither the Ali, Swann nor Churchill decisions of the California courts. Nor did petitioner's court-appointed counsel assert the rationale of those decisions. His brief made two contentions: (1) that one of the jurors had seen defendant in jail garb, and (2) that there was no evidence of intent to commit any crime when the accused entered the store, hence no evidence of a burglarious entry.

The opinion of the Court of Appeal, Second District, Division One, limited itself to disposition of the two flimsy issues raised by the attorney. It did not consider the law of California as established by such decisions as People v. Swann and People v. Ali.

On July 15, 1968, several days after expiration of the time permitted by Rule 28(b), California Rules of Court, Greenfield filed a Pro per petition for hearing in the State Supreme Court, pointing out that his attorney had not raised the preemption question and citing both the Churchill and Swann decisions. Nevertheless, on July 31, 1968, the Supreme Court denied a hearing.

In criminal cases California courts have recognized for a number of years that when, through ignorance or omission, defense counsel causes the loss of a crucial defense in the trial court, there has been a denial of the constitutional right to counsel, infecting the conviction with fundamental unfairness and requiring its reversal. (In re Williams (1969) 1 Cal.3d 168, 174--175, 81 Cal.Rptr. 784, 460 P.2d 984; People v. McDowell (1968) 69 Cal.2d 737, 746--750, 73 Cal.Rptr. 1, 447 P.2d 97; People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) When incompetent representation by court-appointed counsel causes loss of a crucial defense on appeal, a similar result must follow. ³ It must follow because the state is constitutionally obliged to furnish counsel whose advocacy permits full consideration and resolution of crucial issues. (See Anders v. California (1967) 386 U.S. 738, 743--744, 87 S.Ct. 1396, 18 L.Ed.2d 493; People v. Feggans (1967) 67 Cal.2d 444, 447--448, 62 Cal.Rptr. 419, 432 P.2d 21.)

When the failure of representation occurs in the trial court, the judgment will be reversed on appeal or vacated by a writ of habeas corpus (e.g., People v. Ibarra, supra; In re Williams, supra). When the failure occurs at the appellate level, a court which has power to do so will recall the remittitur or order its recall. (See In re Saunders (1970) 2 Cal.3d 1033, 1049, 88 Cal.Rptr. 633; In re Smith, supra, fn. 3.) In petitioner's case the remittitur was issued by Division One of the Court of Appeal of the Second Appellate District. Since we have no control over the remittitur issued by another court of appeal, our course of action will be determined by the level at which we find the occurrence of inadequate representation, if any. We shall hold that petitioner was denied adequate representation both in the trial court and on appeal.

The count charging petitioner with receiving stolen property fell directly, irrefragably and obviously under the Swann and Ali decisions. Later, the Churchill decision was to hold specifically what Swann had implied--that the offense of receiving stolen credit cards was a misdemeanor violation of section 484a(b)(2), not a felony violation of section 496. Had petitioner's trial attorney or his appeal attorney raised the defense first enunciated in Swann, the receiving offense would have been reduced from a felony to a misdemeanor. ⁴

In re Williams, supra, 1 Cal.3d 168, 81 Cal.Rptr. 784, 460 P.2d 984, is precisely in point. There a deputy public defender, ignorant of the Swann case, had permitted a fraudulent credit card user to plead guilty to forgery, a felony. As the Supreme Court observed, the client 'went to prison for the crime of forgery he did not commit.' (1 Cal.3d at p. 173, 81 Cal.Rptr. at p. 787, 460 P.2d at p. 987.) In like fashion, petitioner Greenfield was convicted of receiving stolen property, a felony he did not commit.

Petitionerhs ability to defeat the burglary charge is not so clear. Had his court-appointed attorney on appeal exercised minimal competence, he could have banked heavily on the Supreme Court's declaration in People v. Ali, supra, 66 Cal.2d at page 279, 57 Cal.Rptr. at page 350, 424 P.2d at page 934, that section 484a covered 'all credit card offenses formerly prosecuted under various sections of the Penal Code * * *.' Subsequent to Ali, the Churchill case (255 Cal.App.2d at pp. 453--454, 63 Cal.Rptr. 312) held a defendant liable for burglary prosecution when he entered a place of business with intent to violate those portions of section 484a constituting a felony, that is, to procure goods worth more than $50. On the other hand, People v. Scott (1968) 259 Cal.App.2d 589, 592, 66 Cal.Rptr. 432, held a burglary conviction improper and the credit card offender guilty of no more than a misdemeanor when he entered with an intent to obtain merchandise worth less than $50. No Supreme Court hearing was sought in either Churchill or Scott. The Scott decision did not cite Churchill. More recently, In re Williams, supra, 1 Cal.3d at page 173, 81 Cal.Rptr. 784, 460 P.2d 984,...