Hernandez v. Craven

• Decision Date: 31 October 1972
• Docket Number: Civ. No. 72-1315.
• Citation: 350 F. Supp. 929
• Court: U.S. District Court — Central District of California
• Parties: Joseph Gilbert HERNANDEZ, Petitioner, v. Walter E. CRAVEN, Warden, Folsom State Prison, Represa, California, Respondent.

350 F. Supp. 929

Joseph Gilbert HERNANDEZ, Petitioner, v. Walter E. CRAVEN, Warden, Folsom State Prison, Represa, California, Respondent.

Civ. No. 72-1315.

United States District Court, C. D. California.

October 31, 1972.

Hugh R. Manes, Los Angeles, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, Russell Iungerich, Alan G. Novodor, Deputy Attys. Gen., for respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

HAUK, District Judge.

Petitioner, a California State prisoner incarcerated at Folsom Prison, was sentenced in Los Angeles County Superior Court on January 12, 1971, following his conviction in 1970 by a jury of 2nd degree robbery (Penal Code § 211). The conviction was affirmed in an unpublished opinion by the Court of Appeal, Second Appellate District, on January 3, 1972. A petition for rehearing was denied, and petition for hearing was denied by the California Supreme Court on March 16, 1972. Thus, State remedies have been exhausted as required by 28 U.S.C. § 2254, and the prisoner now seeks a Federal Habeas Corpus Writ.

An Order to Show Cause why the writ should not be granted was issued, and a hearing was held on August 7, 1972. Pursuant thereto and for the reasons expressed in this written Order, which also shall constitute the findings of fact and conclusions of law supporting the Order, the petition for writ of habeas corpus is denied.

The following contentions are advanced by counsel in support of his claim that petitioner's conviction violated his constitutional rights:

1. The conviction was obtained by the use of a 1961 prior felony burglary conviction which was constitutionally invalid.

2. The identification testimony was tainted by constitutionally impermissible pre-trial identification procedure.

3. Counsel at trial was ineffective and incompetent.

The Court has reviewed the Petition, the Response, the Traverse and points and authorities cited by both parties. In connection with the 1970 conviction here attacked (for which he was sentenced in 1971 as mentioned above), case Number A007 490, the Court has also reviewed the following documents:

1. Unpublished opinion of the California State Court of Appeal.

2. Appellant's opening brief on appeal.

3. Respondent's opening brief on appeal.

4. Petition for rehearing in the State Court of Appeal.

5. Petition for hearing in the State Supreme Court.

6. Clerk's Transcript and Supplemental Transcript.

7. Reporter's Transcript and 2 Supplemental Reporter's Transcripts.

Additionally, the Court has studied the following records pertaining to the 1961 felony burglary conviction, Number 241-778¹:

8. Opinion of the State Court of Appeal reported as People v. Hernandez, 209 Cal.App.2d 33, 25 Cal.Rptr. 640 (1962).

9. Opening brief on appeal.

10. Respondent's brief on appeal.

11. Petition for hearing in the State Supreme Court.

12. Clerk's transcript and supplement.

13. Reporter's transcript and supplement.

The Court is, therefore, fully advised in the premises. Since there is no factual dispute, no evidentiary hearing is required and no recitation or findings of fact beyond those recited hereafter are necessary.

THE PRIOR CONVICTION

Counsel for petitioner contends that the 1961 conviction was constitutionally invalid because defendant had been denied counsel in violation of the Sixth Amendment. In the 1970 trial this conviction was used to impeach petitioner when he testified, and was also used in the prosecutor's argument to the jury.

In the 1970 trial, A007 490, petitioner was arraigned on March 17, 1970. On June 17, 1970, an amended information was filed alleging the 1961 prior felony burglary conviction, which petitioner then denied. Objection was made and the trial court held a hearing on October 30 and again on November 4, 1970. At the conclusion of the hearings, the trial Judge ruled that the prior 1961 conviction was not constitutionally invalid, and petitioner then admitted it. The jury was instructed not to concern itself with the allegation previously read to them, and no objection is here made to the procedure followed.

The argument advanced is that the Court of Appeal erred in upholding the validity of the 1961 opinion as previously determined in the 1962 reported opinion, People v. Hernandez, supra. Counsel for petitioner contends that subsequent decisions require a reversal of the 1961 conviction.² He also appears to complain about the wording of the trial court's ruling on the prior, alleging that the court offered "no other reasons for his conclusions and made no Findings of Fact, nor any comment upon the credibility of the witnesses." (Pet. 10-11)

The petitioner must establish by convincing evidence that the factual determination by the state was erroneous, or that the state proceedings were not full and fair. Lurie v. Oberhauser, 431 F.2d 330 (9th Cir. 1970); Martinez v. Wilson, 357 F.2d 173 (9th Cir. 1966); Cancino v. Craven, 305 F.Supp. 539 (C. D.Cal.1970). This he has not done.

It is true that the Court did not make findings of fact as such, nor did the Court specifically pass on the credibility of witnesses at the time of the hearing on November 4, 1970. However, it is not accurate to say that the Court only relied upon the appellate ruling on the validity of the 1961 conviction, although the Judge did quote with approval from that opinion. Thereafter, he added:

"I do not feel that a defendant having the services of the public defender can then discharge the public defender, and say, `Now appoint other private counsel for me.' I do not think Gideon v. Wainright Wainwright intends such a situation ever to come about. There was, apparently, within the meaning of People vs. Maddox, an intelligent waiver of counsel by Mr. Hernandez and, therefore, the prior os sic not constitutionally invalid." (R.T. 57)

Although the petitioner has not demonstrated to the satisfaction of this Court that the proceedings in the State at the 1970 trial were not full and fair, nevertheless the Court now reviews the facts surrounding the 1961 conviction and makes its own determination of its validity.

On April 7, 1961, Mr. Mead from the Public Defender's office was appointed to represent this petitioner. On May 19, 1961, when the case was called for trial, the petitioner insisted that the Public Defender be dismissed and requested a continuance for the appointment of private counsel to represent him. There was an extended colloquy during which the Court first refused all requests, but finally released the Public Defender and granted a continuance until May 24th. The entire proceedings are reported in the Reporter's Supplemental Transcript. p. 3, and appear verbatim in the margin.³

COPYRIGHT MATERIAL OMITTED

It is clear that petitioner was determined to proceed alone and rely on his interpretation of Penal Code § 987, insisting that he was entitled to appointment of private counsel, even though he was repeatedly told that this simply was not true. Although counsel for petitioner objects to the characterization of his procedure as "strategy" by the appellate court, it is nonetheless clear that the petitioner knew what he was doing and did make a considerable choice.

Perhaps the petitioner felt that the case was so hopeless—at least on the question of guilt or innocence—that there was nothing an attorney could do for him, and decided that his only chance was the hope that the jury would be sympathetic to him as a layman pitting himself against the awesome forces of the State. But that is pure conjecture; whatever his reasons, his conduct and statements made his intention clear, and he reinforced and adhered to the purpose he had expressed.

After the continuance, at the start of the trial in the jury's presence on May 24, 1961, the following appears:

"THE DEFENDANT: Your Honor, before we start I'd like to state my position in this case. I cannot act as my own attorney. I have no attorney, and for the sake of the court record, I repeat my request for effective counsel under 987a of the Penal Code authorizing the Court to appoint one.

"THE COURT: Well, the Court has explained all of that to you previously. We have gone all through that, Mr. Hernandez. You had a very competent attorney in the Court's opinion. The Court appointed him for you and you discharged him and said you wanted to represent yourself. The Court strongly advised against it and told you that in the Court's opinion you were making a very grave mistake, but you insisted upon it. The Court gave you a continuance to obtain other counsel or be prepared to proceed today in pro per, in your own person.

"MR. HERNANDEZ: I think if we go back to the transcript of the last proceeding here, I did not request to represent myself at any time.

"THE COURT: Well, the Court informed you that it was then up to you to obtain an attorney." (R.T. 3-4).

Throughout the trial when asked if he wanted to question witnesses he said, "I do, but I do not have a lawyer, your Honor." "I am not acting as my own counsel." "The California Constitution guarantees me the right to have counsel." The Court consistently readvised him, saying finally "You did. You had counsel. We gave you the guarantee and complied with it and appointed counsel for you, and your counsel was all ready for trial some time ago, and then you fired him and said you didn't want him and you would proceed without him. So that's the status of the case now." (R.T. 10-11)

Mr. Hernandez was not a naive and inexperienced young man who was not aware of his rights or the ramifications. His arrest record, which was relevant to his attitude, approach and statements was made known to the trial Judge outside the presence of the jury. Beginning in 1950, there were 5 arrests and dismissals of charges before a conviction in 1954 for burglary and larceny. He apparently was paroled, for he was arrested again for investigation...