Malone, Application of

• Decision Date: 21 June 1955
• Docket Number: Cr. 5609
• Citation: 44 Cal.2d 700,284 P.2d 805
• Court: California Supreme Court
• Parties: Application of Edward D. MALONE for Writ of Habeas Corpus.

Page 805

284 P.2d 805

44 Cal.2d 700

Application of Edward D. MALONE for Writ of Habeas Corpus.

Cr. 5609.

Supreme Court of California, In Bank.

June 21, 1955.

Edward D. Malone, in pro. per., and James A. Clayton, Sacramento, for petitioner.

Edmund G. Brown, Atty. Gen., Doris H. Maier and G. A. Strader, Deputy Attys. Gen., for respondent.

SCHAUER, Justice.

Edward D. Malone is imprisoned under a judgment of conviction of grand theft, rendered November 18, 1948, pursuant to a jury verdict of guilty. By petition for habeas corpus he seeks release from custody. He attacks (1) the validity of such judgment, which he claims was rendered after deputy sheriffs had prevented him from presenting his defense, and (2) the right of this state presently to hold him after jurisdiction over his person was assertedly waived by California in 1950 when petitioner was paroled and taken to Arizona to answer a charge of crime there. The basis of each of these claims is hereinafter set forth. We have concluded that each claim is without merit.

Petitioner prepared and filed his petition for habeas corpus and various documents supplemental thereto in propria persona. Thereafter, pursuant to petitioner's request, Mr. James A. Clayton, who consented to serve, was appointed as attorney to represent petitioner. The return to the order to show cause shows that petitioner is held under a judgment of November 18, 1948, regular on its face, that petitioner was convicted of 'Grand Theft, a felony' and sentenced 'for the term prescribed by law.' (Section 489 of the Penal Code provides that the maximum punishment for grand theft is 10 years.)

(1) Claimed Mistreatment of Petitioner by Deputy Sheriffs which Assertedly Prevented Him from Presenting His Defense Before the Jury.

Petitioner alleges that while he was awaiting jury trial, 'after it had been duly stipulated that petitioner would conduct his own defense; the deputy Sheriffs Okie Morris, ¹ and Ollie Gastineau, did illegally, maliciously, and feloniously deprive the petitioner of the right to use his own law books for the purpose of preparing a defense. That said deputies did illegally, maliciously, and intentionally beat him severely for making notations for the purpose of a defense. That said deputies did destroy petitioner's jury instructions before he could reach the court with same. That said deputies threatened to kill the petitioner upon his return to jail, if he attempted to inform the court of the treatment. That said deputies did maliciously, illegally, feloniously, and will ill intent, take the petitioner into a room just before his final appearance in court, and just before his closing argument to the jury, and in said room of the Stanislaus County jail, did beat the petitioner so severely * * * that, petitioner had great difficulty in talking after reaching the court. That said deputies again threatened to kill the petitioner if he attempted to inform the court. That for the foregoing reasons the petitioner could not prepare any defense whatsoever.' Petitioner further avers that when he was taken into court after the last-mentioned beating he told the judge 'that he was sick, and that he was having great difficulty in talking, and that he would appreciate the Court's allowing him a few minutes rest, so that he might recuperate, whereupon, the Court stated that, it did not seem necessary, and that the Court did not wish to waste time.'

Section 13 of article I of the state Constitution provides that 'In all criminal prosecutions, in any court whatsoever, the party accused shall have the right * * * to appear and defend, in person and with counsel.'

While petitioner does not spell out his theory of deprivation of his right to defend, if seems to be as follows: Although a defendant is not entitled to special privileges because he elects to represent himself (see People v. Chessman (1951), 38 Cal.2d 166, 174, 238 P.2d 1001), an accused's right to quietly prepare his own defense in his own cell without interference by beatings, threats of death, and destruction of papers by his jailers is closely related to the established right to counsel of accused's choice, with time and opportunity to consult privately with such counsel so that there can be adequate preparation for trial (see Powell v. Alabama (1932), 287 U.S. 45, 69-71, 53 S.Ct. 55, 77 L.Ed. 158; House v. Mayo (1945), 324 U.S. 42, 46, 65 S.Ct. 517, 89 L.Ed. 739; People v. Simpson (1939), 31 Cal.App.2d 267, 270-272, 88 P.2d 175; People v. Kurant (1928), 331 Ill. 470, 163 N.E. 411, 415; Turner v. State (1922), 91 Tex.Cr.R. 627, 241 S.W. 162, 23 A.L.R. 1378, and Annotation, 23 A.L.R. 1382), the right to have a reasonable time to prepare for trial (People v. Sarazzawski (1927), 27 Cal.2d 7, 17, 161 P.2d 934), the right of accused to be present at all stages of the trial, at least where his presence bears a reasonably substantial relation to his opportunity to defend (Snyder v. Massachusetts (1933), 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674; People v. Bush (1886), 68 Cal. 623, 628, 631-634, 10 P. 169), the right of accused to be not merely physically in attendance but also physically and mentally able to understand what is going on (People v. Berling (1953), 115 Cal.App.2d 255, 267-268, 251 P.2d 1017), the right of accused to represent himself if he desires and is competent to do so (People v. Rose (1919), 42 Cal.App. 540, 553-554, 183 P. 874; Annotation, 17 A.L.R. 266), the right to interview witnesses befoer trial (People v. Cordero (1925), 72 Cal.App. 526, 529, 237 P. 786), the right to consult privately with a psychiatrist in the preparation of a defense (In re Ochse (1951), 38 Cal.2d 230, 238 P.2d 561), and the right not to be brought before the court in manacles where no need for such restraint is shown (People v. Harrington (1871), 42 Cal. 165, 168). Deprivation of the rights concerned in the last-cited cases, like the asserted conduct of the deputy sheriffs here complained of, bears substantially upon the accused's preparation and presentation of his case.

In the Harrington case, supra, it is said (page 168 of 42 Cal.), 'any order or action of the Court which, without evident necessity, imposed physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental factulities, and thereby materially to abridge and prejudicially affect his constitutional rights of defense.' The Harrington case was one where a judgment of conviction was reversed on appeal, and the other cases cited in the preceding paragraph do not concern the availability of habeas corpus to attack a final judgment of conviction. Holdings of this court and the United States Supreme Court establish that invasions of some of those rights affecting the presentation of a defense furnish grounds for attack by writ of habeas corpus upon a final judgment of conviction. (Hawk v. Olson (1945), 326 U.S. 271, 276, 278, 66 S.Ct. 116, 90 L.Ed. 61; In re Masching (1953), 41 Cal.2d 530, 261 P.2d 251.)

It is unnecessary in the present case to define the extent of the assertedly invaded right of petitioner, or to decide whether an invasion of such right would make an ensuing judgment vulnerable to attack on habeas corpus, for petitioner has not established the factual basis of his claim. The truth of his allegations has been submitted to us upon conflicting affidavits, and we have resolved their averments against petitioner. ²

Petitioner's averments of mistreatment (threats, beatings, deprivation of books, destruction of notes) by deputy sheriffs Morris ³ and Gastineau are denied by affidavits of those officers. The allegation 'That said deputies did destroy petitioner's jury instructions before he could reach the court with same' is shown to be untrue by records of the superior court which include instructions requested by the defendant and refused, some as inapplicable and some as covered by instructions given.

(2) Asserted Waiver of Jurisdiction over Petitioner when He was Paroled.

As previously stated, on November 18, 1948, petitioner was convicted of grand theft, the maximum punishment for which is 10 years' imprisonment (Pen.Code, § 489). The following facts appear from the return of the warden to the order to show cause and other documents filed by the attorney general: On November 7, 1949, the Adult Authority ordered, 'Term fixed at three years. ...