Mitchell, In re

• Decision Date: 23 February 1968
• Docket Number: Cr. 10931
• Citation: 68 Cal.2d 258,65 Cal.Rptr. 897,437 P.2d 289
• Court: California Supreme Court
• Parties: , 437 P.2d 289 In re James MITCHELL on Habeas Corpus.

Page 897

65 Cal.Rptr. 897

68 Cal.2d 258, 437 P.2d 289

In re James MITCHELL on Habeas Corpus.

Cr. 10931.

Supreme Court of California In Bank.

Feb. 23, 1968.

James Mitchell, in pro. per., and Frank C. Wood, Jr., Los Angeles, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws, Roger E. Venturi and Daniel J. Kremer, Deputy Attys. Gen., for respondent.

SULLIVAN, Justice.

James Mitchell, presently an inmate of the California State Prison at Folsom, was convicted of second degree burglary in 1961. The judgment was affirmed by the Court of Appeal on November 7, 1962 (People v. Mitchell (1962) 209 Cal.App.2d 312, 26 Cal.Rptr. 89), a petition for hearing was denied by this court, and certiorari was denied by the United States Supreme Court (Mitchell v. California (1963) 374 U.S. 845, 83 S.Ct. 1902, 10 L.Ed.2d 1065). On March 15, 1967, Mitchell filed in this court the instant petition for a writ of habeas corpus on the ground that he had been denied his constitutional right to counsel on appeal (see Douglas v. People of State of California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811). ¹ We issued an order to show cause and appointed counsel for petitioner. In After an initial hearing on pertinent legal issues, it became apparent that the determination of certain factual issues was necessary to our decision, and we appointed the Honorable Lewis Drucker, retired Judge of the Superior Court, County of Los Angeles, as referee of this court. Our order of reference instructed that evidence be taken and a determination made as to the following questions: (1) What, if any, advice or information did petitioner receive from any source either before or after sentence with respect to his right to have counsel appointed to represent him on appeal? (2) What, if any request or requests did petitioner make for the appointment of counsel on appeal? (3) Did petitioner knowingly and intelligently waive his right to be represented by counsel on appeal and, if so, what is the factual basis of any such waiver?

[437 P.2d 290] his return to the order to show cause, respondent Walter Dunbar, Director of the Department of Corrections, denied the basic claim of the petition and alleged in substance that petitioner had waived his right to counsel on appeal, that his request for counsel on appeal had been equivocal and untimely, and that his delay in making application for collateral relief was not justified.

At the hearing before the referee both oral and documentary evidence was presented, and the following facts emerged: At petitioner's trial in 1961 he was represented by Joseph Mazziotta, an attorney appointed by the court. After the verdict of guilty had been returned, Mr. Mazziotta argued a motion for new trial on petitioner's behalf, and upon denial of this motion petitioner was sentenced to state prison. Thereupon Mr. Mazziotta asked to be relieved as attorney of record, and upon the granting of that motion he stated for the record 'that I now advise Mr. Mitchell, the defendant herein, that since he desires to take an appeal from these proceedings, or the judgment, the order denying the motion for a new trial, he must do so within 10 days from today.' Mr. Mazziotta also testified before the referee that at the time of sentencing he advised petitioner privately as to what procedures the latter would have to undertake in order to have an attorney appointed to represent him on appeal. Mr. Mazziotta further testified, however, that petitioner was in 'a withdrawn state' when this advice was given because 'he wrote some copious notes about the trial, and I am certain that he didn't hear half of what I told him on occasions because of his preoccupation with the written matter that he had before him.' Petitioner testified before the referee that Mr. Mazziotta did not speak to him after advising him for the record of the 10-day appeal period, and that Mr. Mazziotta at no time advised him of the procedures to be undertaken by him in order to have counsel appointed for his appeal.

On September 25, 1961, petitioner in propria persona filed timely notice of appeal from the judgment convicting him of second degree burglary. ² Thereafter, and prior to filing his opening brief, he undertook extensive efforts to augment the record On May 17, 1962, petitioner filed his handwritten opening brief in propria persona. Thereafter he made application to be present and address the court at oral argument; this application was denied on July 5, 1962. On July 25, 1962, respondent's brief was filed and on August 21, 1962, petitioner filed his closing brief. The appeal was calendared for October 9, 1962, for oral argument. On October 8, one day prior to the scheduled hearing, petitioner for the first time made application for appointment of counsel on appeal; the application also requested that he be allowed to appear 'in propria persona with Counsel at the said hearing of this case and Cause.' The application was denied on the date of filing. ⁴ Judgment was affirmed on November 7, 1962.

[437 P.2d 291] on appeal. These efforts included letters, motions, and even a petition for a writ of mandate, ³ but were largely unsuccessful. It was in the course of this attempt to to secure additional records that petitioner received a letter from the clerk of the trial court which, after informing petitioner that his request for records had been denied, went on to state: 'When an attorney has been appointed by the Appellate Court to act in [68 Cal.2d 262] your behalf, these matters may then be presented to that Court, * * *' It was petitioner's testimony before the referee that this letter led him to believe an attorney would be appointed by the Court of Appeal, and that he proceeded to wait for such appointment to occur.

After consideration of the above evidence the referee filed in this court his findings and report, making the following findings on the questions submitted to him: As to question number (1) 'that the petitioner did not receive any advice or information from any source either before or after sentence with respect to his right to have counsel appointed to represent him on appeal'; as to question number (2) 'that the petitioner made a request for appointment of counsel on appeal to the District Court of Appeal in which his case was then pending, on October 8, 1962'; and as to question number (3) 'that the petitioner did not waive his right to be represented by counsel.' The People have excepted to each of these findings.

The findings of the referee, although not binding upon this court, are entitled to great weight. (In re Poe (1966) 65 Cal.2d 25, 27, 51 Cal.Rptr. 896, 415 P.2d 784; In re Jones (1962) 57 Cal.2d 860, 864, 22 Cal.Rptr. 478, 372 P.2d 310; In re Riddle (1962) 57 Cal.2d 848, 853, 22 Cal.Rptr. 472, 372 P.2d 304.) After an independent review of the record we have concluded that the findings are fully supported by the evidence, that they are a correct appraisal of the evidence, and that they should be adopted by us. Accordingly, we adopt them as the findings of this court.

It is now settled that the right to counsel on appeal first enunciated in Douglas v. People of State of California, supra, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, is to be given fully retrospective application. (Smith v. Crouse (1964) 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (per curiam); Ruark v. Colorado (1964) 378 U.S. 585, 84 S.Ct. 1935, 12 L.Ed.2d 1042 (per curiam); People v. Campbell (1966) 239 Cal.App.2d 252, 253--255, 48 Cal.Rptr. 603; see In re Lopez (1965) 62 Cal.2d 368, 376, 42 Cal.Rptr. 188, 398 P.2d 380.) In the light of the facts found by the referee and adopted by this court, we have no hesitancy in concluding that petitioner has been denied that right.

We reject without extensive comment respondent's contentions (a) that petitioner's request for counsel on appeal was equivocal and untimely, and (b) that there was no adequate justification for petitioner's delay in seeking collateral relief until two years after the Douglas decision (see fn. 1, ante). As to the first of these contentions we conclude that the application for counsel made by petitioner on October 8, 1962, was sufficient in content to apprise the appellate court of his desire for representation, and, further, that it was not so untimely that significant disruption of the court's business would have resulted if it had been granted. It is noteworthy that the application was denied Not because it was untimely or would unreasonably delay the case but Solely because appointment of counsel would not be helpful either to petitioner or to the court (see fn. 4, ante). As we have seen, Douglas interdicts any such ground of denial. In the light of all the circumstances of the case, we hold that the request was adequate to require appointment of counsel. As to the second contention, we hold that sufficient justification for petitioner's delay in seeking collateral relief is to be found in his ignorance of law and legal procedures. (See People v. Campbell, supra, 239 Cal.App.2d 252, 256, 48 Cal.Rptr. 603.)

The writ is granted and the Court of Appeal for the Fourth Appellate District is ordered to recall its remittitur in People v. Mitchell, 209 Cal.App.2d 312, 26 Cal.Rptr. 89, to reinstate the appeal therein, and to appoint counsel to represent petitioner on such reinstated appeal.

TRAYNOR, C.J., and PETERS, TOBRINER, and BURKE, JJ., concur.

DISSENTING OPINION

McCOMB, Justice.

I dissent. At the time of defendant's appeal, the matter of appointment of counsel on appeal for indigents was governed by the decision of this court in People v. Hyde (1958) 51 Cal.2d 152, 331 P.2d 42, where it was stated that, upon application of an indigent defendant for counsel on appeal, the Justices of the appellate court should undertake an investigation of the record in order to determine whether such counsel would be 'helpful to the defendant or the...