Horton, In re

• Decision Date: 12 August 1991
• Docket Number: No. S012531,S012531
• Citation: 813 P.2d 1335,284 Cal.Rptr. 305,54 Cal.3d 82
• Court: California Supreme Court
• Parties: , 813 P.2d 1335 In re James F. HORTON II, on Habeas Corpus.

Page 305

284 Cal.Rptr. 305

54 Cal.3d 82, 813 P.2d 1335

In re James F. HORTON II, on Habeas Corpus.

No. S012531.

Supreme Court of California In Bank.

Aug. 12, 1991.

Rehearing Denied Oct. 2, 1991.

Altshuler & Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, Michael Rubin and Marsha S. Berzon, San Francisco, for petitioner.

John K. Van de Kamp, San Francisco, and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Sacramento, Marc E. Turchin, Susan L. Frierson and Joan Comparet, Deputy Attys. Gen., Los Angeles, for respondent.

BROUSSARD, Associate Justice.

The issue in this case is whether a court commissioner may conduct a trial in a capital case when no oral or written stipulation of the parties authorized him to sit as a temporary judge, but when defense counsel proceeded to trial without objection, knowing that the judge was a court commissioner. Petitioner contends that the right to be tried by a regularly appointed or elected superior court judge is a fundamental and personal one that can only be waived after full admonition of the defendant and after he has entered an express waiver of the right on the record. We conclude that the right is not a fundamental personal one requiring an admonition and express waiver, and that the stipulation necessary to vest the commissioner with authority to try the case can be inferred from the conduct of counsel.

I

Petitioner was charged with the October 11, 1982, murder and robbery of Herschel Bowser. The complaint alleged as special circumstances that petitioner murdered Bowser in the commission of a robbery, and that petitioner had previously been convicted of a murder. An information was filed on October 11, 1983, and petitioner was arraigned in the Norwalk branch of the Los Angeles County Superior Court on the same date. On April 6, 1984, petitioner's case was transferred to Department E of the Norwalk branch of the Los Angeles County Superior Court, where Los Angeles County Commissioner Michael Cowell presided. The transfer to Department E was automatic under Norwalk's direct calendaring system, and petitioner was not asked to nor did he give his consent to the transfer. The case proceeded to trial, and on April 1, 1985, the jury found petitioner guilty of murder and robbery and found true a felony-murder special circumstance and a prior-murder special circumstance. On April 16, 1985, the jury returned a death verdict. The court formally imposed the sentence of death on petitioner on October 7, 1985. Petitioner's automatic appeal is pending before this court.

On October 17, 1989, petitioner filed a petition for writ of habeas corpus, or in the alternative, a motion for summary reversal. Though the record on appeal had not been completed, he argued that he was entitled to relief either by way of writ of habeas corpus or by way of summary reversal because his trial had been conducted before a court commissioner, and neither he nor counsel had entered a formal written or oral stipulation to trial by a commissioner sitting as a temporary judge. On July 11, 1990, this court issued an order to show cause why the relief prayed for in the petition for writ of habeas corpus should not be granted.

The following facts can be stated on the basis of the allegations in the pleadings in the habeas corpus proceeding. It is uncontroverted that Commissioner Cowell's standard practice was to inquire of all counsel whether a stipulation had been filed appointing him as a temporary judge, and that neither petitioner, nor his counsel, nor the district attorney had ever executed a written stipulation appointing Commissioner Cowell as temporary judge in petitioner's case. It is further uncontroverted that neither Commissioner Cowell nor defense counsel informed petitioner that he had the right to be tried by a regularly appointed or elected superior court judge, that petitioner was not given a copy of a stipulation form to sign, and that he did not, either orally or in writing, stipulate to trial by the commissioner as a temporary judge.

Petitioner alleges that he did not know of his right to trial by a superior court judge, and that if he had been informed of the right, he would not have waived it. He alleges that he did not intend to stipulate to trial by a commissioner. Respondent denies these allegations.

Petitioner's lead counsel executed a declaration stating that petitioner never stipulated, either orally or in writing, to have his trial before a commissioner, that neither of petitioner's counsel ever discussed the subject of a stipulation, that petitioner was never advised of his right to trial before a regularly appointed or elected superior court judge, and that to the best of counsel's knowledge, petitioner first learned of the right to trial before such a judge when appellate counsel informed him of the right. He further declared that petitioner never authorized him or cocounsel to waive his right, that neither he nor cocounsel ever purported to waive the right on behalf of petitioner, and that it was his opinion that counsel lacked the power to waive the right for petitioner. He explained, however, that he believed at the time of trial that petitioner had signed a written stipulation and that it was on file.

Respondent admits that counsel did not discuss the stipulation with petitioner, but denies that defense counsel did not intend to stipulate and were not authorized to stipulate to trial by a temporary judge, and also denies that they did not actually stipulate by their actions to trial by a temporary judge.

The clerk's and reporter's transcripts prepared in the course of petitioner's trial establish these further facts. At the first hearing in the capital trial before Commissioner Cowell, on April 6, 1984, petitioner was not present. The clerk of the court reminded the court that a stipulation to the commissioner serving as a temporary judge was needed from petitioner. The hearing (on discovery compliance) was put over one week, and the court asked counsel: "Do you promise to get a stipulation when he comes out on that date," and counsel responded: "I will get a stipulation." The bailiff commented that unless the court ordered petitioner out of jail, he would not be present at the continued hearing. The court said: "The Court will order him out, because we do need a stipulation." Counsel responded: "Will the Court permit me to take one to the County Jail. I'll be seeing him, and bring it in and file it." The court stated: "Fine. As long as the stipulation is filed we don't need him present." The hearing ended with this exchange: "The Court: My understanding is that you will secure a stipulation--[p] Mr. Newton [defense counsel]: Yes, your Honor. [p] The Court:--on the matter before that date."

Respondent also submits the declaration of Commissioner Cowell that he habitually solicited stipulations to his presiding, that he reminded petitioner's counsel to get a stipulation, that both defense counsel had appeared before him on many occasions and knew that he was a commissioner and that neither had ever declined to stipulate to his presiding in the past. He had no reason to doubt that counsel would obtain and file the necessary stipulation. Petitioner was absent on one or both of the hearing dates. When petitioner finally appeared in his courtroom, Commissioner Cowell assumed that the stipulation had been filed, and believed that counsel shared this assumption. He added that at the front of his bench is a large nameplate bearing his name and title. In a supplemental declaration filed by petitioner, Commissioner Cowell added that he did not construe counsel's statements at the April 6, 1984, hearing as indicating that petitioner had already agreed to enter into a stipulation.

The reporter's transcript, as well as a settled statement, indicate that petitioner appeared before Commissioner Cowell twice early in the proceedings, once to waive his right to a speedy trial, and once for a continuance. On his third appearance, some 10 months after the case was transferred to Commissioner Cowell's department, there was a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) at which petitioner attempted to remove his counsel on account of their incompetence. (He had filed a malpractice action against them in the Los Angeles County Superior Court.) He contended that they were not properly preparing the case, that they had refused to contact witnesses whom petitioner had identified, that they had refused to file certain motions, and that they were pressuring him to accept a guilty plea despite his innocence. After a series of rulings adverse to him, and as the court was about to take a time waiver from petitioner, this interchange took place: "[Petitioner:] May I ask you a question? [p] The Court: Yes, sir. [p] The defendant: With no offense intended, but are you a Judge or are you a Commissioner? [p] The court: A Commissioner, Mr. Horton, for this case, you having signed a stipulation, I'm a Judge for all purposes. [p] The Defendant: I signed it? [p] The Court: Yes, sir. When the matter was first brought before this Court. No offense intended, no offense taken." The settled statement indicated that after Commissioner Cowell stated that petitioner had signed a written stipulation, petitioner responded, "I signed it" in a questioning tone of voice, and shook his head from side to side to indicate disagreement. He was interrupted by counsel, who spoke to him on another topic. Petitioner dropped the subject and moved on to discuss his motions. The case proceeded to trial and the subject of the stipulation was not renewed until this collateral attack on the judgment.

II

The judicial power of the state is vested in the Supreme Court, Courts of Appeal, superior courts, municipal courts, and justice courts. (Cal. Const., art. VI, § 1; McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 355, 261...