Mosley, In re

• Decision Date: 30 January 1970
• Docket Number: Cr. 12568
• Citation: 1 Cal.3d 913,83 Cal.Rptr. 809,464 P.2d 473
• Court: California Supreme Court
• Parties: , 464 P.2d 473 In re Johnie Lee MOSLEY on Habeas Corpus.

Page 809

83 Cal.Rptr. 809

1 Cal.3d 913, 464 P.2d 473

In re Johnie Lee MOSLEY on Habeas Corpus.

Cr. 12568.

Supreme Court of California In Bank.

Jan. 30, 1970.

Johnie Lee Mosley, in pro per., and Martin Wolman, Los Angeles, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas S. Kerrigan, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

Johnie Lee Mosley is presently confined in the California Men's Colony at Los Padres pursuant to a judgment convicting him of assault by means of force likely to produce great bodily injury. (Pen.Code, § 245.) He seeks a writ of habeas corpus on the ground that his conviction was obtained in violation of his Sixth and Fourteenth Amendment rights to have the effective assistance of counsel, to plead not guilty, and to have a trial wherein he can confront and cross-examine the witnesses against him. We have issued an order to show cause and have appointed counsel to represent petitioner in this proceeding.

At the preliminary examination conducted on February 3, 1966, petitioner's 16-year-old son, Curtis, testified that on the evening of January 6, 1966, he was at home with his mother and several young children when his father, petitioner, entered and commenced to argue with his mother; that when he, Curtis, went into the kitchen where the argument was taking place, his mother had gone into a bedroom and petitioner 'dared' her to come out into the kitchen; that when the mother entered the kitchen he, Curtis, saw that petitioner was holding an opened knife in his pocket; that after some further argument petitioner lunged at the mother with the knife and he, Curtis, jumped in the way; and that he struggled with petitioner for the knife and sustained cuts on his head and ear. ¹ Curtis exhibited scars on his head and ear which he alleged had resulted from the knife wounds.

Petitioner's appointed counsel, a member of the public defender's office, cross-examined Curtis at some length regarding the incident. Curtis denied that he disliked his father but stated that his father should be punished so that he would not repeat his conduct. Curtis also denied that he had held a gun during the incident, but he admitted that his mother, after the knife wounds had been inflicted, seized a '.45 caliber bee-bee gun' which he owned and sought to 'scare (petitioner) to get the knife.' ²

Petitioner did not testify at the preliminary examination, and no witnesses were called in his behalf. ³ He was held to answer and on February 16 an information was filed charging him with assault with a deadly weapon. (Pen.Code, § 245.) ⁴ At his arraignment on February 17, petitioner entered a plea of not guilty.

The case was called for trial on March 30, 1966. At that time petitioner appeared with his appointed counsel, a deputy public defender different from the one who had represented him at the preliminary examination. The following then took place:

'(DEFENSE COUNSEL): * * * The defendant desires to waive his right to a jury trial, your Honor, and submit the matter on the transcript of the preliminary hearing. There will be no further testimony. Is that correct, Mr. Mosley?

'THE DEFENDANT: Correct.

'(THE PROSECUTOR): Mr. Mosley, you understand you have a right to a jury trial if you desire?

'THE DEFENDANT: That's correct.

'(THE PROSECUTOR): Answer out loud.

'THE DEFENDANT: Correct.

'(THE PROSECUTOR): So you do at this time give up your right to a jury trial and ask for a court trial?

'THE DEFENDANT: Yes.'

Thereupon defense counsel and the prosecutor joined in the waiver of jury trial and stipulated that the court should consider the transcript of the preliminary examination and give it the same force and effect as though the witness had been called and sworn at trial and had testified as reflected therein. Then the prosecution and defense rested their respective cases and submitted the matter. The court, having read the transcript in anticipation of such submission, found petitioner guilty of assault by means of force likely to produce great bodily injury. ⁵ A probation report was ordered, and petitioner was referred to the Department of Corrections for diagnostic examination (Pen.Code, § 1203.03). On August 3, 1966, the court, after considering the probation and diagnostic reports, denied probation and sentenced petitioner to imprisonment for the term prescribed by law with a recommendation of minimum time in custody.

There was no appeal from the judgment.

In his petition for writ of habeas corpus petitioner complains that he was deprived of his right to plead not guilty and have a jury trial wherein he could confront the witnesses against him. He also contends that he was denied the effective assistance of counsel in that his counsel failed to advise him that he had such rights and to prepare an adequate defense in his behalf. We may fairly imply from the petition the additional allegation that petitioner was not informed by his counsel that submission of the case on the transcript of the preliminary examination was tantamount in the circumstances to a plea of guilty.

The return to the order to show cause sets forth in summary the facts which we have recited and concludes that petitioner has not been deprived of any of his legal and constitutional rights.

Appended to the return is the affidavit of the deputy public defender who represented petitioner on March 30, 1966, when the case was submitted on the transcript of the preliminary examination, and on August 3, 1966, when he was sentenced. That affidavit, after stating in substance that the affiant had been a deputy public defender for some eight years preceding the period in question and that he represented petitioner in the subject proceedings, goes on as follows: 'That in connection with his representation of petitioner, he (affiant) had conversations with both petitioner and his wife prior to and after the trial though he does not recall the precise content of all of these conversations. (Par.) That it is his recollection that there were no witnesses to dispute the testimony of the victim, petitioner's son, that he was cut with a knife by the petitioner. (Par.) That he has reviewed the minutes of the court records in this matter which indicate that defendant waived his right to a jury trial and submitted the matter on the transcript of the prliminary hearing on March 30, 1966. (Par.) That it was his practice to advise defendants of their right to a jury trial or a court trial and to explain the significance of a submission on the transcript of a preliminary hearing. That it was also his practice to inform defendants that a guilty finding was likely when a case is submitted on the transcript of the preliminary hearing when such transcript contained sufficient evidence to support the charge. That he feels certain that this defendant was so informed. (Par.) That he was aware that when a case was submitted on the transcript of the preliminary hearing and mitigating circumstances surrounding the assault exist, there was a good possibility that the charge might be reduced to assault by means of force likely to produce great bodily injury. That he was aware that this reduction could be of great significance because it had been his experience that the Probation Department was very reluctant to recommend probation on a conviction for assault with a deadly weapon and that seeking probation was the petitioner's chief concern. (Par.) That he was aware that the petitioner had a drinking problem but did not feel that this fact would result in an acquittal for petitioner in view of the circumstances of this case and the nature of the charge. That he felt that it would be to petitioner's interest to try for a reduction of the charge and apply for probation and that the petitioner was in accord with this plan.'

In conclusion the affidavit alleges that affiant at the time of petitioner's case had made appearances in the subject trial court for more than four years; that affiant employed no duress on petitioner, made no promises to him, and felt that he was working in petitioner's best interest at all times; and that affiant was not aware that petitioner was dissatisfied with the representation afforded him until he was so informed by the Attorney General's office shortly before the filing of the order to show cause in March of 1969.

The Sixth Amendment to the United States Constitution provides: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall be been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.'

It is clear that the guarantee of confrontation here set forth is made applicable to the states by the Fourteenth Amendment. (Brookhart v. Janis (1966) 384 U.S. 1, 3--4, 86 S.Ct. 1245, 16 L.Ed.2d 314; Pointer v. Texas (1965) 380 U.S. 400, 403--406, 85 S.Ct. 1065, 13 L.Ed. 923; Douglas v. Alabama (1965) 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934; People v. Foster (1967) 67 Cal.2d 604, 606, 63 Cal.Rptr. 288, 432 P.2d 976.) Moreover, the same right is guaranteed by statute in California. (Pen.Code, § 686.) The right may be waived, however, and in numerous cases it has been held that no infringement thereof results when defense counsel, in defendant's presence and without objection by him, stipulates at trial that testimony given at the preliminary examination, as reflected in the transcript thereof, shall be given the same force and effect as though the witnesses had so testified at trial. (Butler v. Wilson (9th Cir. 1966) 365 F.2d 308, 310; Wilson v. Gray (9th Cir. 1965) 345 F.2d 282,...