Miller v. Hamm
| Decision Date | 22 July 1970 |
| Citation | 9 Cal.App.3d 860,88 Cal.Rptr. 538 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John R. MILLER, Petitioner and Appellant, v. Robert L. HAMM, as Clerk of the Superior Court of Ventura County, Defendantand Respondent. Civ. 36899. |
Gilbert F. Nelson, Los Angeles, under appointment by the Court of Appeal, for petitioner and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Laurence M. Sarnoff, Deputy Atty. Gen. for defendant and respondent.
Petitioner John R. Miller appeals from an order denying his 'application for writ of mandamus * * * for an order directing the clerk of Ventura County * * * to make a certified copy of the proceedings, Preliminary Hearing and Superior Court Trial, in case No. #5739' and to forward same to petitioner at the Soledad Training Facility, Soledad, California, 'in order to assist him in the preparation of a meaningful petition for a writ of habeas corpus.'
Pursuant to petitioner's request we have caused the trial court files to be lodged with the clerk of this court (Cal.Rules of Court, rule 12(a)), and have taken judicial notice of the documents filed therein. We conclude that under the circumstances of this case, the order denying the petition for writ of mandate should be affirmed for the reasons which we set forth below.
Petitioner had his codefendant Waldron were charged by an information filed on September 7, 1965, under Superior Court of Ventura County No. CR 5739, with having committed the following felonies on or about August 1, 1965: (count I) robbery of Robert Fuller (Pen.Code, § 211), (count II) robbery of Betty Estes (Pen.Code, § 211), (count III) assault with a deadly weapon upon Leon Marvin Lowe (Pen.Code, § 245), and (count IV) burglary of Barnes Trading Post (Pen.Code, § 459).
At petitioner's request for court appointment of counsel, Attorney George Dyer, Jr. was appointed on the date of arraignment. Attorney Dyer thereafter represented petitioner at all times until and including the pronouncement of judgment against him.
On November 2, 1965, the trial court dismissed count IV (burglary) upon the district attorney's motion, and the case went to trial before a jury on the first three counts. On November 16, 1965, the jury found petitioner and his codefendant Waldron guilty on each of those three counts.
On December 15, 1965, counsel for both defendants moved for a new trial. After having first denied the motions, the trial court vacated its ruling and continued the motion to December 28, (sic) 1965, to enable counsel to file written points and authorities and for oral argument on the continued date. On December 23, 1965, petitioner's motion for new trial was withdrawn, his request for probation denied, and he was sentenced to concurrent sentences in the state prison. Petitioner Did not appeal from this judgment.
On February 19, 1969, almost three years and two months later, petitioner filed a written motion for an order to the clerk of the court to prepare 'records and transcripts' to enable him to prosecute a writ of habeas corpus. The motion specified no particular record or transcript. Petitioner cited case authority in support of his motion, but he did not mention Gardner v. California (1969) 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 decided on January 20, 1969, about a month prior to petitioner's filing his written motion. The trial court denied the motion on February 19, 1969, citing People v. Sparks (1952) 112 Cal.App.2d 120, 246 P.2d 64, cert. denied, 345 U.S. 959, 73 S.Ct. 944, 97 L.Ed. 1379, wherein the appellate court affirmed a denial of a motion for clerk's and reporter's transcripts of trial proceedings in order to prosecute a writ of error Coram nobis. In Sparks, as in this case, the defendant had failed to appeal from the judgment against him, and at the time of his motion for transcripts no Coram nobis proceedings had been filed. Petitioner herein made no attempt to obtain an appellate review of this adverse ruling of February 19, 1969, either by way of appeal 1 or by a writ proceeding in an appellate court.
On October 9, 1969, petitioner filed this request for the reporters' transcripts in the form of an 'Application for a Writ of Mandamus,' now citing the Gardner case as one of his authorities in support of his petition. The court below denied the writ on the date on which it was filed, noting that in its opinion the Gardner case did not overrule People v. Sparks, Supra, 2 on the basis of which it had previously denied petitioner's motion for the transcripts.
On December 2, 1969, petitioner filed his notice of appeal from the foregoing order of denial of October 9, 1969. This was timely notice for a civil proceeding. (Cal.Rules of Court, rule 2(a).)
To his opening brief, petitioner's appellate counsel has attached as Exhibits A and B a declaration by the petitioner and his specification of portions of the trial court files to which he directs the attention of the court. Petitioner's declaration asks them to be 'deemed incorporated as a part of (his) Petition For Writ of Mandate.'
The record in this case raised a threshold inquiry whether we, in fact, have an appeal from a mandamus proceeding, which is a collateral but independent civil proceeding even though it arises out of the criminal action. It appears from the record that the Pro se petition (application) was inadvertently misfiled in the criminal action, petitioner apparently having placed the criminal action number CR 5739 on his petition. The superior court clerk's transcript was entitled, 'The People of the State of California, Plaintiff, vs. John Richard Miller, Defendant' and was filed as a criminal appeal under No. 2d Crim. 17532 in this court. Having ascertained, in course of our preparations for oral argument, from the title and labelling of the petition, the label preceding the court's minute order of October 9, 1969, the notice of appeal, and the briefs of appellate counsel, that we do have an appeal from a proceeding in mandamus, we ordered the record and briefs refiled under a civil appeal number.
Had the original misfiling not occurred, the superior court probably would have denied the petition on grounds free of constitutional overtones in deference to the teaching of such cases as Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65--66, 195 P.2d 1, thereby limiting this appeal to nonconstitutional issues. The court below probably would have noted, we think, and we note, that the petition is directed against the clerk of the court and not to the court itself. 3 The clerk being a ministerial officer, without judicial powers (Rose v. Lelande (1912) 20 Cal.App. 502, 503, 129 P. 599), the substantive issue involved is narrower than that raised in the motion of February 19, 1969. The earlier motion addressed to the court requested action upon its part and therefore it invoked, inter alia, the exercise of a judicial discretion in its disposition. In contradistinction in this mandate proceeding against the clerk, the pivotal issue is the duty of the clerk. Substantively, therefore, the petition and its supporting authorities would have to establish a clear and present Ministerial duty on the part of the clerk to comply with petitioner's request for the reporters' transcripts. (See, E.g., Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 813--814, 25 Cal.Rptr. 798; cf. Wenzler v. Municipal Court (1965) 235 Cal.App.2d 128, 131--132, 45 Cal.Rptr. 54.) Procedurally, the petition raised quesions whether petitioner had properly named and joined the proper party respondent and the necessary real-party-in-interest, 4 whether prior demand and refusal 5 or excuse thereof had been alleged, and whether proper service of the necessary papers had been made on respondent and real-party-interest. 6 However, the trial court treated the petition in effect a motion and petitioner's appellate counsel and the Attorney General have treated the appeal as one reaching the question of whether petitioner has a constitutional right to the requested free transcripts under the circumstances of this case. We do likewise in the interest of judicial economy and to provide guidance to the superior court if petitioner should file a new petition free of the technical shortcomings which occurred in this case.
In Wade v. Wilson (1970) 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470, the question was raised whether a convicted felon, who makes no claim of innocence of the crime for which he was convicted, is constitutionally entitled to a free reporter's transcript years after his conviction was affirmed on appeal, for the purpose of enabling him to generally search the record for possible errors which might be asserted in a post-judgment collateral proceeding. The court stated that the question was one of first impression before that court, but that it was unnecessary to decide it in that particular case. Thus, we have no United States Supreme Court decision dispositive of the constitutional issue raised in this case. We deem it unnecessary, therefore, to distinguish the Pre-Wade cases cited by petitioner as not controlling in this case.
In the instant case, petitioner made no effort to take advantage of a direct appeal from his judgment of conviction in which he could have obtained an appellate review of the questions he belatedly seeks to raise in this court by appendices A and B, 7 appended to his counsel's opening brief. His failure to appeal gives rise to a presumption that he was validly convicted. (Cf. People v. Chavez (1966) 243 Cal.App.2d 761, 767, 52 Cal.Rptr. 633.) Had petitioner felt aggrieved at the time he was first sentenced to prison, he could have appealed with no cost and no hazard to himself. Upon such an appeal, a free reporter's transcript of the trial court have been prepared and furnished to him. (Cal.Rules of...
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