Moss, In re
| Decision Date | 15 July 1985 |
| Citation | 170 Cal.App.3d 16,216 Cal.Rptr. 205 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 170 Cal.App.3d 16 170 Cal.App.3d 16 In re Marshall Robert MOSS, On Habeas Corpus. B 010063. |
Richard E. Erwin, Ventura, for petitioner.
No appearance for respondent.
Michael D. Bradbury, Dist. Atty., and Patricia Latham Ball, Deputy Dist. Atty., for real party in interest.
Marshall Robert Moss (petitioner) seeks review by way of a writ of habeas corpus of his convictions of driving under the influence, driving with a suspended license, and his admission to probation violations.
Our review calls to mind that one or more of a defendant's constitutional rights may occasionally fall between the cracks; here, many of them fell into the Grand Canyon. Therefore, we must vacate petitioner's convictions and his admission to violations of probation.
On April 28, 1983, petitioner 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 count III, driving on a suspended license (Veh.Code, § 14601, subd. (a)). The complaint also alleged petitioner had been convicted of prior offenses for driving under the influence of alcohol in 1979 and 1982.
Petitioner 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 Petitioner initialed and signed the form in the appropriate places. 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: Petitioner signed his name on the signature line immediately beneath this sentence.
A discussion between the court and petitioner took place. 2
[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."
No further advisements or inquiries relating to petitioner's constitutional rights were made by the court. There was no discussion of the "Waiver of Constitutional Rights" form signed by petitioner.
The following discussion between the judge and petitioner 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]:
The complaint apparently did not allege a prior violation of Vehicle Code section 14601, subdivision (a). Nevertheless, the judge accepted an admission to a prior violation of Vehicle Code section 14601, although he shared his dilemma with petitioner. He said: "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]:
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. 3
Perhaps the judge had become sidetracked, since he did not acknowledge there was an admission to the prior violation of Vehicle Code section 14601. The judge then proceeded as if petitioner had entered pleas of guilty to driving under the influence and driving with a suspended license, counts I and III, 4 even though there were no pleas of guilty to these counts.
When petitioner admitted his probation violations, insouciance came into full bloom. The judge said:
[Pet]: "Yes, Your Honor.
[Judge]:
The next day, April 29, 1983, was not any better. Petitioner was sentenced to five consecutive one-year terms in the county jail. 5 The judge highlighted the event by commenting: The assessment may have been correct, but, as we shall discuss, the method was wrong.
Petitioner 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. 6 Petitioner 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.
A. PROCEDURAL OBJECTIONS
The People contend petitioner is guilty of laches. Petitioner 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 relief by way of 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 petitioner was indigent. The quality of his performance before the municipal court does not demonstrate a capacity to represent himself. 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 petitioner's inability to secure appellate counsel. (See In re Bower (1985) 38 Cal.3d 865, 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].)
The People also argue that petitioner 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 (In re Bower, supra, 38 Cal.3d 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.
The procedure for seeking a writ of habeas corpus is set forth in part 2, title 12 of the Penal Code. An application for a writ is made by filing a verified petition. (Pen.Code, § 1474.) An order to show cause will issue if it appears to the reviewing court that the facts set forth in the petition, if true, establish a prima facie case for relief. (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.) The party upon whom the order to show cause is served is required to file a return which is "responsive to the grounds actually presented in the petition." (People v. Green (1980) 27 Cal.3d 1, 43, fn. 28 164 Cal.Rptr. 1, 609 P.2d 468; Pen.Code, § 1480.)
Our Supreme Court has imposed the requirement that the return filed by the respondent in a habeas proceeding "recite the facts upon which the denial of petitioner's allegations is based, and, where appropriate, should provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed." (In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2, 152 Cal.Rptr. 528, 590 P.2d 383.) Should the return to the petition for a writ of habeas...
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