People v. Pena

• Decision Date: 10 May 1972
• Docket Number: Cr. 8957
• Citation: 101 Cal.Rptr. 804,25 Cal.App.3d 414
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry L. PENA, Defendant and Appellant. 1

Page 804

101 Cal.Rptr. 804

25 Cal.App.3d 414

PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry L. PENA, Defendant and Appellant.

1 Cr. 8957.

Court of Appeal, First District, Division 1, California.

May 10, 1972.

Hearing Denied July 19, 1972.

Howard M. Levin, Jack, Ruiz, Mallen & Sullivan, San Jose, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Robert R. Granucci, Louise H. Renne, Deputy Attys. Gen., San, Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered following a jury verdict of guilty of violating Penal Code section 4500 (assault with a deadly weapon by life prisoner). He seeks reversal on two grounds: (1) He was denied effective assistance of counsel at the trial, and (2) the trial judge was guilty of prejudicial misconduct. Defendant has also moved for an order for leave to produce additional evidence on appeal. We reserve ruling on this motion until such time as we were prepared to consider defendant's appeal on its merits. ¹

Additional Evidence on Appeal

We consider, first, the motion to produce additional evidence. Defendant requests that we admit into evidence several documents. The first is an affidavit prepared by defendant's trial counsel in which it is asserted that the trial counsel's failure to object to the fact that defendant and his witnesses were shackled and handcuffed during the trial was due to his ignorance of the pertinent law. The second and third are unsworn statements of two alleged eyewitnesses in which it is asserted that defendant was acting in self-defense. Defendant also requests that testimony be taken before a referee as to the lack of necessity for shackling defendant and his witnesses during the trial and as to the ineffectiveness of the assistance provided by defendant's trial counsel.

The first issue raised by the motion is whether rule 23(b) of the California Rules of Court may be invoked in a criminal appeal where the trial was by jury. This rule provides that the reviewing court may grant or deny, in whole or in part, an application for the production of additional evidence on appeal subject to such conditions as it may deem proper, and that if it is granted, the court may order that the evidence be taken before the court or a justice thereof, or before a referee appointed for that purpose. This rule is based on the power given to this court by Code of Civil Procedure section 909 ² (formerly § 956a) which provides, in pertinent part, that: 'In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make findings of fact contrary to or in addition to those made by the trial court. . . . The reviewing court may for the purpose of making such findings of fact or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, . . .' Section 909, in turn, finds its genesis in article VI, section 11, of the California Constitution which provides that 'The Legislature may permit appellate courts to take evidence and make findings of fact when jury trial is waived or not a matter of right.'

Although there is authority to the effect that section 909 does not apply to criminal cases (People v. Cowan, 38 Cal.App.2d 144, 153, 100 P.2d 1079; People v. Valenzuela, 259 Cal.App.2d 826, 834, 66 Cal.Rptr. 825, 67 Cal.Rptr. 691), there is also authority which indicates that the statute applies to a criminal case where a jury is waived, but that it does not apply in such a case where the trial is by jury. (People v. Mendes, 35 Cal.2d 537, 546, 219 P.2d 1; People v. Carmen, 43 Cal.2d 342, 349, 273 P.2d 521; People v. Edgmon, 267 Cal.App.2d 759, 770, fn. 9, 73 Cal.Rptr. 634; see People v. Benford, 53 Cal.2d 1, 7, 345 P.2d 928; People v. Merriam, 66 Cal.2d 390, 397, fn. 6, 58 Cal.Rptr. 1, 426 P.2d 161.) We are satisfied from a reading of the last cited cases and from the plain language of section 909 that the statute is inapplicable in a criminal case where, as here, a jury trial has not been waived.

We observe in any event, that the unsworn statements of the two alleged eyewitnesses that defendant was acting in self-defense clearly do not come within the purview of section 909 and rule 23(b). The evidence-taking and fact-finding powers of the appellate courts do not convert them into triers of fact or abrogate the general rule that findings of the trial court based on substantial evidence are conclusive on appeal. (People v. Benford, supra, 53 Cal.2d 1, 6, 345 P.2d 928, 932.) The purpose of the statute and the rule implementing it 'is to enable appellate courts, in appropriate cases, to terminate litigation by affirmance or modification and affirmance, of the judgment, or by reversal with directions to enter judgment for appellant if it appears that on no reasonable theory could respondent make a further showing in the trial court. (Citations.)' (People v. Benford, supra.) They do not warrant an appellate court's general reversal of a judgment on the basis of newly discovered evidence presented in the appellate court. (People v. Benford, supra, at pp. 6--7, 345 P.2d 928; Estate of Schluttig, 36 Cal.2d 416, 423, 224 P.2d 695.) Here the testimony of the witnesses which defendant wishes to produce on appeal creates a conflict with that produced at the trial. We cannot weigh that testimony with the testimony which is transcribed in the record and conclude that as a matter of law defendant was acting in self-defense.

Defendant, apparently conceding that the subject statute and rule do not apply in a criminal case where a jury trial has not been waived, argues that this case is distinguishable insofar as the production of additional evidence on the issue of effectiveness of counsel is concerned because that issue is not a jury question. We agree that the determination whether a defendant has been deprived of the effective assistance of counsel under the applicable principles is not a jury question but a question of law. However, in order to make a finding that there was ineffective representation there must be a showing that counsel's lack of diligence or competence reduced the trial to a "farce or a sham." (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Hill, 70 Cal.2d 678, 689, 76 Cal.Rptr. 225, 452 P.2d 329.)

Although the best criterion of the competency, care and alertness of the attorney referred to is said to be the record of the case (People v. Ives, 17 Cal.2d 459, 477, 110 P.2d 408; People v. Honea, 257 Cal.App.2d 259, 263, 64 Cal.Rptr. 628), we recognize that the factual basis for the claim of incompetency may exist dehors the record. (See In re Hochberg, 2 Cal.3d 870, 875, 87 Cal.Rptr. 681, 471 P.2d 1.) The latter circumstance does not require, however, that the basis for the claim of ineffective representation be established through the vehicle of producing additional evidence before the appellate court pursuant to section 909 and rule 23(b) to establish the matter which is dehors the record. To insist on proceeding in that manner does not only do violence to the provisions of the statute and the rule which specifically make them inapplicable in cases where a jury trial has been had, but also does violence to the elementary principle that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to matters contained in the record of the trial proceedings. (See In re Hochberg, supra; People v. Merriam, supra, 66 Cal.2d 390, 396--397, 58 Cal.Rptr. 1, 426 P.2d 161; People v. Edgmon, supra, 267 Cal.App.2d 759, 770, 73 Cal.Rptr. 634.)

A defendant with a legitimate complaint as to the quality of representation by his trial counsel, where the basis for such complaint is not presented by the record, is afforded an adequate procedural remedy by way of reasonable collateral attack in a court of competent jurisdiction. (People v. Edgmon, supra, 267 Cal.App.2d 759, 770, 73 Cal.Rptr. 634; In re Hochberg, supra, 2 Cal.3d 870, 875, 87 Cal.Rptr. 681, 471 P.2d 1; see In re Williams, 1 Cal.3d 168, 170--171, 81 Cal.Rptr. 784, 460 P.2d 984.) In Hochberg, the Supreme Court, speaking of the constitutional right of effective trial counsel, makes the following significant statement: '. . . although habeas corpus cannot serve as a second appeal, 'denial of the right to counsel is one trial error which has always been cognizable on habeas corpus' (citation) whether or not it was raised on appeal. (Citations.)' (2 Cal.3d at p. 875, 87 Cal.Rptr. at p. 684, 471 P.2d at p. 4.) Accordingly, in a petition for habeas corpus based upon an allegation of denial of effective representation by trial counsel where such issue is disputed, appellate courts, because they are not designed and equipped to conduct testimonial hearings on disputed issues of fact, follow the practice of appointing a referee to take evidence to make findings concerning the representation afforded the petitioner. (In re Hochberg, supra, at p. 873, fn. 2, 87 Cal.Rptr. 681, 471 P.2d 1; In re Williams, supra.) This is the appropriate remedy and procedure where the success of the claim of the denial of effective representation by trial counsel depends upon matters which are extrinsic to the record.

Defendant urges that we may grant relief by way of habeas corpus in aid of our appellate jurisdiction. No authority is cited for this proposition. Habeas corpus, although granted to inquire into the legality of one imprisoned in a criminal prosecution, is not a proceeding in that prosecution but an independent action instituted by the petitioner to secure his discharge from imprisonment or restraint. (France v. Superior Court, 201 Cal. 122, 126--127, 255 P. 815.) Habeas corpus cannot serve as a substitute for appeal (In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513; In re Shipp, 62 Cal.2d 547, 552, 43 Cal.Rptr. 3, ...