Martin v. Hall

• Decision Date: 05 October 1971
• Citation: 97 Cal.Rptr. 730,20 Cal.App.3d 414
• Court: California Court of Appeals Court of Appeals
• Parties: , 53 A.L.R.3d 719 Edward F. MARTIN, Plaintiff and Respondent, v. William Herbert HALL, Defendant and Appellant. Civ. 36217.

Page 730

97 Cal.Rptr. 730

20 Cal.App.3d 414, 53 A.L.R.3d 719

Edward F. MARTIN, Plaintiff and Respondent, v. William Herbert HALL, Defendant and Appellant.

Civ. 36217.

Court of Appeal, Second District, Division 5, California.

Oct. 5, 1971.

Hearing Denied Dec. 16, 1971.

William Herbert Hall, in pro. per., and Leon Mayer, Los Angeles, for defendant and appellant.

Kurlander, Solomon & Hart, William A. Kurlander, Stephen Warren Solomon, Charles R. Hart, Jr., Santa Monica, for plaintiff and respondent.

KAUS, Presiding Justice.

A jury decided that defendant, an attorney, committed professional malpractice when, in 1963, he unsuccessfully defended plaintiff on a felony charge. As a result of his conviction plaintiff was imprisoned for about four years. Damages were fixed at $20,000. Defendant appeals.

FACTS

During the night of November 25, 1962, plaintiff wanted to speak to his estranged wife, Wilma, over the telephone. She was then visiting Mr. and Mrs. Manuel D. Nelson at their home in the city of Gardena. Mr. Nelson, who took plaintiff's call, told him that Wilma did not want to talk to him. Plaintiff said: 'You can't stop me from talking to my wife * * * brother, you are dead. * * * I have a gun and I am coming over to kill you.' At about 2:00 a.m. plaintiff fired eight shots in front of the Nelson home. Later that night plaintiff was arrested in his car and found in possession of a pistol. He was then charged with three misdemeanors: disturbing the peace (Pen.Code, § 415) It appears from the record that plaintiff was positively identified by his wife. Mr. Nelson had also seen the person who had fired the shots. Although he could not identify plaintiff, he could 'swear' that it was he.

carrying a concealed weapon within a vehicle (Pen.Code, § 12025), and simple assault (Pen.Code, § 240), the named victim being Mr. Nelson. On November 27, 1962, plaintiff, without counsel, pleaded guilty to disturbing the peace and the weapons charge. He pleaded not guilty to the assault. He was sentenced to thirty days in the county jail which he served.

Sometime after plaintiff had pleaded guilty in the municipal court and started to serve his sentence, it was determined that three slugs found in the attached garage of the Nelson home had been fired from a pistol of the make and caliber of that found on plaintiff. There appears to have been no physical evidence that the other five shots ever hit any part of the house.

A new accusatory pleading charging plaintiff with the felonies of assault with a deadly weapon (Pen.Code, § 245) and discharging a firearm into an inhabited dwelling (Pen.Code, § 246) was then filed. ¹ The assault count, still pending in the municipal court, was dismissed in furtherance of justice.

Plaintiff then retained defendant as his attorney. Defendant was aware of the misdemeanor proceedings which had taken place. Plaintiff suggested that double jeopardy would be a defense to the felony charges, according to plaintiff defendant agreed, but at no time during the felony prosecution did he attempt to utilize the misdemeanor convictions as a total or partial defense, affecting either the question of guilt or the permissible punishment.

Defendant's strategy, to the extent that he was permitted to explain it, was, to put it bluntly, a bargain with the trial court. The proposed mechanics for its execution appear only dimply in the record. The felony charges were submitted on the transcript of the preliminary hearing and plaintiff was promptly found guilty. Apparently either before or after that finding, defendant arranged with the trial judge that the criminal proceedings would be either suspended or terminated and that plaintiff would be civilly committed for the purpose of receiving psychiatric care. Unfortunately, on the day of 'sentence,' when this bargain was to be consummated, plaintiff did not appear. When he finally did show up sometime later, it came to light that the reason for the earlier failure to appear had been his rearrest on a charge of drunk driving. In the malpractice action defendant offered to prove that at that juncture in the felony case the trial court considered itself no longer bound by the terms of the bargain and therefore felt free to and did sentence plaintiff to concurrent prison terms on both counts.

Since sentencing the defendant on the section 246 count was a clear violation of the prohibition against multiple punishment contained in section 654 of the Penal Code, (Neal v. State of California, 55 Cal.2d 11, 18--21, 9 Cal.Rptr. 607, 357 P.2d 839) a Marin County Superior Court on plaintiff's habeas corpus petition, on October 7, 1964, vacated the sentence on that count.

In October 1964 plaintiff petitioned the sentencing court for a writ of error coram nobis, raising some of the defenses which, in this malpractice action, he claims defendant should have raised in the first place. The petition was denied, and an appeal to this court resulted in an unpublished opinion by division three, affirming the order of denial. The court did not pass on the merits as it held that the proper remedy was habeas corpus. Defendant then petitioned for habeas corpus relief and was successful. In an unpublished opinion, filed March 9, 1967, the same division held that Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206, compelled the granting of the writ because Plaintiff's claim of malpractice rests on the proposition that defendant should have utilized the misdemeanor prosecution and punishment for the purpose of causing a dismissal of the felony prosecution or, at least, preventing punishment after conviction. He relies in equal part on the constitutional and statutory prohibition against double jeopardy (U.S.Const. Amend. V; Cal.Const. art. I, § 13; implemented by Pen.Code, § 1023) and the statutory prohibitions against multiple punishment and multiple prosecution. (Pen.Code, § 654.)

                plaintiff had been subjected to multiple prosecutions in violation of section 654 of the Penal Code. 2  Since Kellett was decided three years after plaintiff's conviction, the opinion necessarily assumed that the decision was to be retroactively applied. 3
                

At the trial below the parties offered conflicting expert testimony on the question of whether defendant had acted with due care in not asserting any of the three mentioned defenses.

CONTENTIONS

Defendant raises many issues on this appeal, not all of which need be discussed. Suffice it to say, for present purposes, that one of the points he makes is that neither a plea of double jeopardy, nor reliance on the dual prohibitions of section 654 would have been successful at the time he represented plaintiff. In other words, he claims that even if due care had demanded that he raise one or all of these defenses, ⁴ his negligence caused no harm, because none would have prevailed.

DISCUSSION

At the trial of this case there were two distinct issues: (1) whether defendant was negligent; and (2) whether, had he interposed the three defenses, a more favorable result would have been achieved. (Kilmer v. Carter, 274 Cal.App.2d 81--88, 78 Cal.Rptr. 800; Campbell v. Magana, 184 Cal.App.2d 751, 754--757, 8 Cal.Rptr. 32.) The first issue was properly submitted to the jury on conflicting expert testimony. (Starr v. Mooslin, 14 Cal.App.3d 988, 997--999, 92 Cal.Rptr. 583). On the second issue the parties apparently decided to play Russian roulette and failed to request appropriate rulings from the trial court. In People v. Martin, the decision on all three defenses would have presented nothing but a question of law for the court. The trial court, in the instant case, therefore should have ruled how the court in the criminal case would have resolved these legal questions. If, after the establishment of the basic facts, it became evident that, as a matter of law, a particular defense could not have prevailed, any evidence on whether or not defendant committed malpractice in not raising it became academic. ⁵ At the very least it was the court's duty to instruct the jury that such malpractice caused the defendant no harm. Conversely, if in its view a particular defense would have prevailed, the trial court should have so advised the jury, leaving to that body only the issues of negligence and damages. In other words, under the peculiar facts of this case, the question of causation was one of law. ⁶ Instead of proceeding in this fashion, the trial court in effect left it up to the attorneys to argue to the jury--and to the jury to decide--what the legal effect would have been, in 1963, had defendant tried to take some advantage of the municipal court proceedings. Thus, for example, counsel for plaintiff argued freely to the jury that disturbing the peace was necessarily included in a violation of section 246 of the Penal Code. ⁷

While the cases which discuss an appellant's right to complain about the trial court's failure to instruct, where no instruction was requested, may be very hard to reconcile, ⁸ it appears to be well established that it is reviewable error to submit to the jury an issue of law as a question of fact. (Lysick v. Walcom, 258 Cal.App.2d 136, 158, 65 Cal.Rptr. 406.) By claiming that none of the three defenses he did not raise would have helped plaintiff in the criminal action, defendant is, in effect, urging that no factual issue with respect to causation existed; put differently, he is arguing that the evidence is insufficient to support the verdict. This he may do in spite of his failure to move for a nonsuit, a directed verdict or appropriate instructions. (First National Bank of Monrovia v. Maryland Casualty Company, 162 Cal. 61, 72, 121 P. 321; Gapin v. City of Los Angeles, 34 Cal.App.2d 660, 662, 94 P.2d 359; Roy Tong v. Sun Realty Co., 128 Cal.App. 261, 17 P.2d 759.) ⁹

It goes without saying that defendant has nothing to complain about if the court should have instructed the jury that, given negligence in not...