Harris v. Procunier

• Decision Date: 29 October 1974
• Docket Number: No. 72-1347.,72-1347.
• Citation: 498 F.2d 576
• Parties: Jackie HARRIS, Plaintiff-Appellee, v. Raymond K. PROCUNIER, Director of the Department of Corrections of the State of California, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

498 F.2d 576 (1974)

Jackie HARRIS, Plaintiff-Appellee, v. Raymond K. PROCUNIER, Director of the Department of Corrections of the State of California, Defendant-Appellant.

No. 72-1347.

United States Court of Appeals, Ninth Circuit.

May 22, 1974.

Certiorari Denied October 29, 1974.

Russell Iungerich, Deputy Atty. Gen. (argued), Alan G. Novodor, Deputy Atty. Gen., Los Angeles, Cal., for defendant-appellant.

Carson Taylor (argued), Los Angeles, Cal., for plaintiff-appellee.

Before the Court En Bank: CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges, and BARNES, Senior Circuit Judge.

Certiorari Denied October 29, 1974. See 95 S.Ct. 235.

OPINION

BARNES, Senior Circuit Judge:

The State of California (herein the State) appeals from the decision of the district court to grant a petition for writ of habeas corpus to appellee, Jackie Harris. In 1940, at the age of 14, Harris was charged with murder in a state court. The Juvenile Court had exclusive jurisdiction over him and conducted a hearing to examine Harris and determine whether he should be tried as an adult. Harris was not represented by counsel at that time, and there is no indication that he was informed of his right to same. The Juvenile Court found Harris to be unfit for juvenile proceedings and waived its jurisdiction. An information was subsequently filed against him in Superior Court; counsel was appointed for him and he entered a plea of guilty. He was placed in a state hospital as a sexual psychopath, and remained there for six years. After his release he was sentenced to life imprisonment.

In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Supreme Court held that a determination by a juvenile court on the issue of whether it should waive jurisdiction over a juvenile is a critical stage in a criminal proceeding. It therefore requires a hearing conforming to the basic requirements of due process, including assistance of counsel. Harris filed a petition for writ of habeas corpus in state court arguing that Kent should be given retroactive effect. The Supreme Court for the State of California denied the petition holding that retroactive application of Kent would seriously disrupt the administration of justice, citing Johnson v. New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). In re Harris, 67 Cal.2d 876, 64 Cal.Rptr. 319, 434 P.2d 615 (1967).

Subsequent to the filing of his petition in the United States district court, but before that court entered its order granting the petition, this Court filed its opinion in Powell v. Hocker, 453 F.2d 652 (9th Cir. 1971) (No. 71-1118, before Chambers, Choy and Muecke, JJ.), holding that Kent is to be given retroactive effect. Powell held that since Harris was not represented by counsel at the hearing before the Juvenile Court in 1940, Kent necessitates a ruling that that hearing was invalid. If the hearing is held invalid, the Superior Court did not have jurisdiction to entertain Harris's plea of guilty. Harris would be released from custody and the matter remanded back to the juvenile court, which would no longer have custody jurisdiction over him because he is over 18 years of age. (He should now be 47 years of age.)

The State argues that Powell should be overruled on the basis of Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L. Ed.2d 202 (1972), and seeks a hearing en banc. In Adams the Supreme Court held that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), is not to be given retroactive effect. Coleman stands for the proposition that an accused is constitutionally entitled to the presence of counsel at a preliminary hearing. It is the State's position that a preliminary hearing for an adult (Coleman) is no less important a stage in the criminal proceedings than a certification hearing for a juvenile (Kent).

RETROACTIVITY:

The retroactivity of a rule concerning constitutional claims in criminal litigation turns, in a practical sense, on the exigencies of the situation. Stovall v. Denno, 388 U.S. 293, 296-297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). And ". . . the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved." Johnson, supra, at 728. In analyzing such a problem, three criteria are to be considered: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall, supra, at 297.

"Foremost among these factors is the purpose to be served by the new constitutional rule," Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). The new constitutional rule enunciated in Kent was to insure that juveniles in certification proceedings were provided a full hearing and the right to counsel. Rules concerning the right to counsel have often been applied retroactively: Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963), concerning a criminal defendant's right to counsel at time of trial; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), right to counsel at time of arraignment; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), right to counsel at time of appeal; and McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968), making the right to counsel at sentencing retroactive as granted in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). For a complete list see Williams v. United States, 401 U.S. 646, 653 fn. 6, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). In distinguishing the right to counsel cases which require retroactive application from all other cases where retroactive application has been generally denied, the Supreme Court stated the following:

"Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." (Footnotes omitted.) Williams v. United States, supra, at 653.

The question is therefore whether the purpose of Kent was to "overcome an aspect of the criminal trial that substantially impairs its truth-finding function"? We hold that it was not. First, a certification hearing is not a trial, but a hearing. Juvenile proceedings are not intended to be adversarial. Second, the function of a certification hearing is not to gather facts for the purpose of conducting criminal proceedings against the juvenile, but to determine whether it would be proper for the juvenile court to continue to assert jurisdiction over the juvenile. While we in no way discount the thrust of Kent to provide due process guarantees at the certification hearing, we do not see that it is the type of constitutional rule which is directed at, or in any way impairs, the truth-finding function.

With respect to the second criterion (the extent of reliance by law enforcement authorities on the old standards), we simply note that Harris's certification hearing occurred in 1940, while the rule in Kent was not made until 1966. We find this fact, in and of itself, sufficient factual proof that the law enforcement authorities have relied on the old rule for a period which meets the second criterion.

The third criterion, the effect on the administration of justice of a retroactive application of the new standards, would be devastating. In re Harris, supra, 64 Cal.Rptr. at 321-322. 434 P.2d at 617-618. The number of cases affected would be significant, and there would be numerous instances where the juvenile courts would no longer have jurisdiction over the person of the defendant by reason of age. Cf. Brumley v. Charles R. Denney Juvenile Center, 77 Wash.2d 702, 466 P.2d 481 (1970), wherein the Supreme Court of Washington declined to apply Kent retroactively; Bouge v. Reed, 254 Or. 418, 459 P.2d 869 (1969), wherein the Supreme Court of Oregon refused to apply Kent retroactively; and Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133 (1969) cert. denied, 397 U.S. 977, 90 S. Ct. 1098, 25 L.Ed.2d 272 (1960), wherein the Court of Appeals for the District of Columbia declined to apply Kent retroactively.

Perhaps even more importantly, the plaintiff-appellee is confined by reason of his own guilty plea in an adult court with all constitutional safeguards present. He thus has waived the failure of the state to provide counsel at the time of his juvenile court appearance. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Sanders v. Craven, 488 F.2d 478 (9th Cir. 1973); Mann v. Smith, 488 F.2d 245 (9th Cir. 1973); Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965) cert. denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550 (1966).

For these reasons, we overrule Powell v. Hocker, supra, on the issue of retroactivity, and remand the action to the district court with instructions to dismiss the petition for writ of habeas corpus.

CHAMBERS, MERRILL, KOELSCH, DUNIWAY, EUGENE A. WRIGHT, TRASK, ALFRED T. GOODWIN, WALLACE and SNEED, Circuit Judges, concur.

BROWNING, Circuit Judge (concurring):

I concur in the reversal of the judgment essentially for the reasons stated by Chief Judge Bazelon in his opinion in Mordecai v. United States, 421 F.2d 1133 (1969). As Judge Bazelon said of Mordecai, "appellant presents a forceful claim that the absence of counsel . . . at...