Madrid, In re, Cr. 5666

• Decision Date: 10 September 1971
• Docket Number: 5736,Cr. 5666,5775
• Citation: 97 Cal.Rptr. 354,19 Cal.App.3d 996
• Court: California Court of Appeals Court of Appeals
• Parties: In re Manuel Valencia MADRID on habeas corpus. In re Horace L. COMPTON on habeas corpus. In re James Ray THOMAS on habeas corpus.

Page 354

97 Cal.Rptr. 354

19 Cal.App.3d 996

In re Manuel Valencia MADRID on habeas corpus.

In re Horace L. COMPTON on habeas corpus.

In re James Ray THOMAS on habeas corpus.

Cr. 5666, 5736, 5775.

Court of Appeal, Third District, California.

Sept. 10, 1971.

As Modified Sept. 20, 1971.

Rehearing Denied Oct. 20, 1971.

Hearing Denied Nov. 18, 1971.

Clyde M. Blackmon and Madeline Dean Sager, Sacramento, for petitioners.

Edward W. Bergtholdt, James Garbolino, Marjory Winston Parker, Deputy Attys. Gen., Sacramento, for respondent.

JANES, Associate Justice.

Each of the petitioners in these habeas corpus proceedings is presently confined under a commmitment for violation of Penal Code section 209 ¹ (Kidnaping for the purpose of robbery). A plea of guilty was entered by each: Madrid in 1968, Compton in 1964 and Thomas in 1965. All such pleas resulted from plea bargaining. Each petitioner challenges his conviction in the light of People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225, claiming that his conduct was not within that proscribed by section 209, and that he is entitled to relief under People v. Mutch (1971) 4 Cal.3d 389, 395--396, 93 Cal.Rptr. 721, 482 P.2d 633. The crimes committed by the three petitioners are in no way connected; we have consolidated the matters solely because of the similarity of the legal issues involved.

In Daniels, the California Supreme Court held that the asportation of a victim sufficient to subject the perpetrator of a robbery to the aggravated kidnaping provisions of Penal Code section 209 is not satisfied by compelled movement which, although accompanied by the intent to rob, is only incidental to the robbery and does 'not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.' (71 Cal.2d at p. 1139, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 237.) The court thus rejected the therefore controlling Chessman-Wein ² rule that it is the fact of kidnaping which controls irrespective of distance, intent or other factors. The court in People v. Mutch (1971) 4 Cal.3d 389, 395--396, 93 Cal.Rptr. 721, 482 P.2d 633, declared its interpretation of section 209 effective from the 1951 amendment of that section.

Petitioners allege that the compelled movement of the victims in each of their cases was incidental to the robbery being committed and did not substantially increase the risk of harm to those persons. The asportation in petitioner Madrid's case consisted of moving people around within a tavern; in Compton's case several garage attendants were compelled to move approximately 100 feet towards the back of the garage; in Thomas' crime one supermarket employee was taken to the back of the market and another to the market vault, which was not locked. Injuries were inflicted by pistol-whipping some of the victims in each of the robberies.

The People advance two principal contentions in support of their position that petitioners are not entitled to relief under the rules enunciated in Daniels and Mutch:

(1) A judgment based on a guilty plea is not open to collateral attack for insufficiency of evidence in the sense that the acts committed did not constitute the elements of the crime charged; and

(2) The convictions challenged are the product of valid plea negotiations and as such may not be collaterally attacked.

A third issue presents itself in a slightly different aspect in each of the three cases. That issue involves the disposition to be made in the event this court finds the Daniels-Mutch rule applicable to a judgment based on a plea of guilty.

COLLATERAL ATTACK--JUDGMENT UPON GUILTY PLEA

The People's argument on this issue is premised upon an analysis of Danielswhich in effect characterizes that case as simply a reversal based on insufficiency of the evidence. ³ As will appear below, this unrealistically constricted view of Daniels colors the People's presentation to the point that the arguments presented combine to form a structure of unassailable logic and order which, however, has no application to the realities of the situation.

On the issue of its retrospective determination of legislative intent, the Supreme Court stated in People v. Mutch, supra: 'Here, as in Daniels, the issue is 'whether the acts of (defendant), on the record in this case, constitute the kind of conduct proscribed by section 209.' From the foregoing analysis we conclude that a robber who suffered a post-1951 conviction of violaing section 209 because he compelled his victim to perform movements which were 'merely incidental to the commission of the robbery and (did) not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself,' was convicted under a statute which did not prohibit his acts at the time he committed them. As the Court of Appeal correctly reasoned in a decision rendered shortly after Daniels, 'There, the Supreme Court stresses that its interpretation of section 209 is what the Legislature always intended that it should be. In this light, what defendant did was never proscribed under section 209.' * * * (People v. Ballard (1969) 1 Cal.App.3d 602, 605, 81 Cal.Rptr. 742, 744; accord, People v. Ross (1969) 276 Cal.App.2d 729, 736, fn. 7, 81 Cal.Rptr. 296.) (Original Italics.)

'In such circumstances, it is settled that finality for purposes of appeal is no bar to relief, and that habeas corpus or other appropriate extraordinary remedy will lie to rectify the error: 'Habeas corpus is available in cases where the court has acted in excess of its jurisdiction. (Citations.) For purposes of this writ as well as prohibition or certiorari, the term 'jurisdiction' is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court's powers as defined by constitutional provision, statute, or rules developed by courts. (Citations.) In accordance with these principles a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. (Citations.)' (In re Zerbe (1964) 60 Cal.2d 666, 667--668, 36 Cal.Rptr. 286, 388 P.2d 182, 184; 10 A.L.R.3d 840; (Citations).)

'The present application is to recall the remittitur. As a general rule, an error of law does not authorize the recalling of a remittitur. (People v. Randazzo (1957) 48 Cal.2d 484, 488, 310 P.2d 413.) An exception is made, however, when the error is of such dimensions as to entitle the defendant to a writ of habeas corpus.' (Italics added.) (4 Cal.3d at pp. 395--396, 93 Cal.Rptr. at p. 724, 482 P.2d at p. 485).

The Attorney General argues that since a plea of guilty constitutes an admission of every element of the crime charged, petitioners may not now challenge the sufficiency of their conduct as the basis of the respective judgments against them. In this regard reliance is placed on the authorities prohibiting attack on such judgments except where the claim goes to the legality of the proceedings or the absence of fundamental jurisdiction. (See, e.g., Stephens v. Toomey (1959) 51 Cal.2d 864, 870, 338 P.2d 182; People v. Anderson (1970) 11 Cal.App.3d 86, 89, 89 Cal.Rptr. 440.) It is argued that such fundamental irregularities do not exist in any of the present cases, and it is further suggested that by pleading guilty the petitioners admitted not only all the elements known at the time to be necessary for their convictions, but also admitted the presence of 'any elements which might possibly be added to the offense at some future time by means of a retroactive reinterpretation of an earlier legislative intent.'

The People seek also to distinguish those 'inadequacy of counsel' cases in which habeas corpus relief was granted petitioners who, on the advice of counsel, entered pleas of guilty to crimes which could not have been committed by them due to legal impossibility. (See In re Williams (1969) 1 Cal.3d 168, 175--178, 81 Cal.Rptr. 784, 460 P.2d 984; In re Scruggs (1971) 15 Cal.App.3d 290, 294--295, 93 Cal.Rptr. 119, and In re Greenfield (1970) 11 Cal.App.3d 536, 541--543, 89 Cal.Rptr. 847; In re Perez (1966) 239 Cal.App.2d 466, 48 Cal.Rptr. 809.) The reasoning of those cases, however, is not limited to the facts presented therein. Although in each of the four cited cases adequate research by counsel would have revealed that the accusatory pleadings were insufficient on their face(s) to have supported convictions for the crime(s) charged, the analogy to the present case is irrefutable.

In In re Perez, supra, the court quoting In re Zerbe (1964) 60 Cal.2d 666, 36 Cal.Rptr. 286, 388 P.2d 182, stated:

"Habeas Corpus is available in cases where the court has acted in excess of its jurisdiction (Pen.Code, § 1487, subd. 1; Neal v. State of California, 55 Cal.2d 11, 16, 9 Cal.Rptr. 607, 357 P.2d 839.) For the purposes of this writ as well as prohibition or certiorari, the term 'jurisdiction' is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court's powers as defined by the constitutional provision, statute, or rules developed by courts. (Citations.) In accordance with these principles a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. (Citations.)" (Id. at pp. 469--470, of 239 Cal.App.2d, at p. 811 of 48 Cal.Rptr.)

And, in Scruggs, supra, it is pointed out that '(w)here, as here, the record shows without doubt that a defendant has pleaded guilty to a crime which he did not commit, the courts should hesitate to apply technical rules to prevent such defendant from obtaining relief.' (15 Cal.App.3d at p. 294, 93 Cal.Rptr. at 121.)

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