Moss, In re

• Decision Date: 18 December 1985
• Citation: 221 Cal.Rptr. 645,175 Cal.App.3d 913
• Court: California Court of Appeals Court of Appeals
• Parties: In re Marshall Robert MOSS, On Habeas Corpus. B010063.

Page 645

221 Cal.Rptr. 645

175 Cal.App.3d 913

In re Marshall Robert MOSS, On Habeas Corpus.

B010063.

Court of Appeal, Second District, Division 6, California.

Dec. 18, 1985.

As Modified Dec. 23, 1985 and Jan. 17, 1986.

Richard E. Erwin, Ventura, for petitioner

No appearance for respondent.

Michael D. Bradbury, Dist. Atty., and Michael Schwartz, Deputy Dist. Atty., for real party in interest.

GILBERT, Associate Justice.

Petitioner, Marshall Robert Moss, seeks review in a writ of habeas corpus of his convictions of driving under the influence, driving with a suspended license, and his admission to probation violations. We conclude that certain constitutional rights of Moss were violated.

FACTS

On April 28, 1983, Moss appeared in propria persona before the Ventura Municipal Court for arraignment on a misdemeanor complaint charging him in counts I and II, with driving under the influence of alcohol (Veh.Code, § 23152, subds. (a), (b)) and in Moss signed and initialed a form entitled "Ventura County Municipal Court--23152--Waiver of Constitutional Rights," a copy of which is set out in an appendix to this opinion. ¹ Near the bottom of the front page of the form is a sentence which reads, "[h]aving in mind the rights I will be giving up, and all the possible consequences of my plea, I desire to plead Guilty/No Contest to violation of Section 23152 of the Vehicle Code." On the reverse side of the form, under the paragraph entitled "WAIVER OF ATTORNEY," there appears the following sentence: "I understand I have a right to have a lawyer defend me at all stages of the proceedings, and that if I cannot afford to hire a lawyer, the court will provide one for me. I knowingly and intelligently WAIVE (GIVE UP) my right to a LAWYER." Moss signed his name on the signature line immediately beneath this sentence.

count III, driving with a suspended license (Veh.Code, § 14601, subd. (a)). The complaint also alleged Moss had been convicted of prior offenses for driving under the influence of alcohol in 1979 and 1982. When we examined the municipal court file, it contained only the original first page of the complaint and a copy of the second page. On page two was the allegation that Moss had been convicted of a prior violation of Vehicle Code section 14601, subdivision (a) on March 15, 1979.

Moss' petition contains a transcript purporting to accurately depict the contents of a tape recording of the proceedings held on April 28, and April 29, of 1983. We have listened to the tape recording of the proceedings, and reviewed the transcript. (See Stewart v. Justice Court (1977) 74 Cal.App.3d 607, 611, 141 Cal.Rptr. 589.)

Initially, the People did not challenge the accuracy of the transcript submitted by Moss. Instead, they relied upon portions of the transcript of the tape recording to support their claim that Moss was duly advised of his constitutional rights. It was not until we had issued our first opinion that the People conceded they had no traditional grounds on which to base a petition for rehearing, but argued that the tape recording did not include a crucial portion of the proceedings. We discerned a pause or gap in the recorded conversation. Therefore, we granted a rehearing on our own motion and appointed retired Los Angeles Superior Court Judge George Dell to sit as a referee to take evidence, and to determine certain factual issues concerning that portion of the hearing not captured on tape.

The tape recording revealed that a discussion between the court and Moss took place.

[Judge]: "Okay Mr. Moss. You're charged with driving a vehicle under the influence of intoxicating liquor and driving on a suspended license. Do you understand those charges?

[Pet]: "Yes, Your Honor.

[Judge]: "Do you wish to be represented by an attorney?

[Pet]: "No, Your Honor."

The transcript of the tape recording reflects that no further advisements or inquiries relating to Moss' constitutional rights were made by the court. There was no discussion of the "Waiver of Constitutional Rights" form signed by Moss.

The following discussion between the judge and Moss took place concerning the two prior driving under the influence convictions:

[Judge]: "Do you admit that you were convicted of driving under the influence in Ventura in 1982?

[Pet]: "Yes, sir. I think it was about October.

[Judge]: "October '82?

[Pet]: "Yes, Your Honor.

[Judge]: "And March of '79?

[Pet]: "Uh, I don't know about March '79, Your Honor. I imagine so.

[Judge]: "Well it shows that in '79 you were arrested in February and convicted on March 15.

[Pet]: "This may be so, Your Honor. I, I don't recollect what date.

[Judge]: "Okay. But somewhere in '79 you were convicted of this offense, is that right?

[Pet]: "As far as I know, yes, sir.

[Judge]: "Okay. Two priors are admitted."

A discussion then took place concerning a prior violation of Vehicle Code section 14601. The judge was perplexed because at that time, page two of the complaint was missing from the court file. He shared his dilemma with Moss. "The pink sheet shows a prior 14601 but it's not, I don't have a complaint that alleges it." Petitioner tried to help. He told the court: "Does that not include one of those other ..."

[Judge]: "Well, let me see. Maybe you're right and I'm ...

[Pet]: "I believe that was sir.

[Judge]: "It says page 1 of 2, but I don't have page 2.... Well in order for me to do something about it someone's going to have to file page 2.... And it would be helpful to sign page 2."

This illuminating dialogue was interrupted when a messenger delivering flowers appeared and addressed the court. The judge assisted the messenger, and the flowers were presumably delivered to court personnel. ²

Perhaps the judge had become sidetracked, since there is no acknowledgment of an admission to the prior conviction of Vehicle Code section 14601, nor is there any further discussion concerning that prior conviction. The judge then proceeded to take pleas of guilty to driving under the influence and driving with a suspended license, counts I and III. ³

When Moss admitted his probation violations, either insouciance or expediency came into full bloom. The judge said: "Okay. And you're also on probation. I've got you here with three cases that you're presently on probation. Do you admit that you're in violation of your probation?"

[Pet]: "Yes, Your Honor.

[Judge]: "Okay. Well, Mr. Moss I'm going to have all these matters, refer them to the probation office and set it for a hearing tomorrow at 1:30. We'll see you tomorrow at 1:30 on all these matters."

The next day, April 29, 1983, was not any better for Mr. Moss. He was sentenced to five consecutive one-year terms in the county jail. ⁴ The judge highlighted the event by commenting: "Well Mr. Moss, you win the prize for the day. You have absolutely no redeeming value in any of these cases." The assessment may have been correct, but, as we shall discuss, some of the methods were wrong.

Moss sought relief by way of habeas corpus in the superior court, arguing that he was denied due process in the probation revocation hearing. On April 2, 1984, the superior court denied his petition for writ of habeas corpus. The court failed to give reasons for the denial of the petition. ⁵

Moss appealed, claiming only that the imposition of consecutive sentences was improper. The appellate department of the superior court affirmed the convictions on April 3, 1984.

DISCUSSION

I

A. PROCEDURAL OBJECTIONS

1. LACHES

The People contend Moss is guilty of laches. He waited nine months following the ruling of the appellate department before he sought relief from this court. A party seeking relief by way of a petition for an extraordinary writ is required to move expeditiously. (In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793; Scott v. Municipal Court (1974) 40 Cal.App.3d 995, 996-997, 115 Cal.Rptr. 620.)

A review of the municipal court file reveals that Moss was indigent. The quality of his performance before the municipal court does not necessarily demonstrate a capacity to represent himself on a habeas corpus petition. His prior court experiences alone no more qualify him to be his own lawyer than a case of the gout qualifies one to practice medicine. Given the paucity of free legal services available to assist indigent misdemeanants with their appeals (see, e.g., Erwin v. Appellate Department (1983) 146 Cal.App.3d 715, 719, 194 Cal.Rptr. 328), the delay was attributable to Moss' inability to secure appellate counsel. (See In re Bower (1985) 38 Cal.3d 865, 873 fn. 3, 215 Cal.Rptr. 267, 700 P.2d 1269; In re Saunders (1970) 2 Cal.3d 1033, 1040-1041, 88 Cal.Rptr. 633, 472 P.2d 921.) A delay of nine months, under these circumstances, is not a significant delay. (In re Huddleston (1969) 71 Cal.2d 1031, 1034, 80 Cal.Rptr. 595, 458 P.2d 507 [2 1/2-year delay]; In re Spears (1984) 157 Cal.App.3d 1203, 1208, 204 Cal.Rptr. 333 [18-month delay]; In re Hancock (1977) 67 Cal.App.3d 943, 945, fn. 1, 136 Cal.Rptr. 901 [9-month delay].)

2. HABEAS CORPUS IN THE FIRST INSTANCE

The People also argue that Moss raises a number of issues in his petition that were not raised below. A court of review may refuse to issue a writ of habeas corpus when it appears that the application should have been first made in the lower court. (In re Hillery (1962) 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759.)

Where it "is necessary to establish that a defendant has been denied a fundamental constitutional right, resort to habeas corpus is not only appropriate, but required. [Citations.]." (In re Bower, supra, 38 Cal.3d at p. 872, 215 Cal.Rptr. 267, 700 P.2d 1269.) Here, intervention is proper by this court in the first instance because the issues raised involve fundamental due process rights. Further, it affords us the opportunity to provide guidance to the trial court.

We, therefore, entertain the present matter in the first instance. (Pen.Code, §§ 1484, 1508; In re Bower, supra, 38...