People v. Rhoden

• Decision Date: 25 January 1972
• Docket Number: Cr. 15917
• Citation: 99 Cal.Rptr. 751,492 P.2d 1143,6 Cal.3d 519
• Court: California Supreme Court
• Parties: , 492 P.2d 1143 The PEOPLE, Plaintiff and Respondent, v. Steven J. RHODEN, Defendant and Appellant. In Bank

Page 751

99 Cal.Rptr. 751

6 Cal.3d 519, 492 P.2d 1143

The PEOPLE, Plaintiff and Respondent, v. Steven J. RHODEN, Defendant and Appellant.

Cr. 15917.

Supreme Court of California,

In Bank.

Jan. 25, 1972.

As Modified Feb. 23, 1972.

Steven J. Rhoden, in pro. per., and Earl Klein, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert F. Katz, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

This is a petition for recall of the remittitur after an affirmance by the Court of Appeal of a judgment convicting defendant on various felony counts.

All the events took place on the evening of May 6, 1967, and in the same neighborhood of Los Angeles. The first victim, James Baker, testified that about 8 or 8:30 p.m. he was drinking beer in a bar when defendant, whom he characterized as 'a very good friend of mine,' entered and said there was someone outside who wanted to see him. They walked out the door, and Baker was invited to enter a parked car by an unidentified man who said he was its owner. Baker did so, and the man sat in the driver's seat while defendant entered on the passenger side. The man then described the car as being in good running condition, asked Baker if he wanted to purchase it, and offered to take him for a test drive. Baker declined, explaining he had left a glass of beer on the bar and preferred to finish it. The man nevertheless started the car and drove off with Baker sitting between him and defendant.

After traveling some 10 or 12 city blocks, the driver stopped next to the Denker Playground. He alighted from the car and apparently began to cross the street towards a residence. Defendant exited from the passenger side and stood at the front of the car with his back to Baker, who remained in the vehicle. After a time defendant suggested to Baker that he also get out and 'relax and stretch.' As Baker opened the door to do so, he was knocked unconscious by a blow on the side of the head. When he awoke defendant and the other man were gone, his shoes had been removed, his trousers torn, and his wallet, watch, and ring were missing.

The second victim, Martha Nelson, testified that about 10 p.m. the same evening she was walking towards a bus stop when defendant, whom she had known for some five years, appeared in a car driven by an unidentified man. Defendant asked where she was going, and when she said 'Home,' offered to take her there. She entered the car, and sat as directed in the front seat between the two men.

As soon as they drove away defendant punched Mrs. Nelson in the nose several times and caused a nosebleed, and each man threatened her with a knife. Defendant took her purse and opened it, then threw it out of the car window; indeed, as they drove along he proceeded to take all her clothes off and throw them out of the window as well, piece by piece. The driver stopped the car at the Denker Playground, but defendant directed him to continue on to defendant's nearby house. There they forced Mrs. Nelson inside and removed all their own clothes. Defendant began an act of rape, but was interrupted when his mother, who lived in an adjoining portion of the house, knocked on the door and asked what he was doing. Defendant replied 'Nothing,' jumped up, put on his pants, and ran out. The direct distance between the point where Mrs. Nelson entered the car and defendant's house is some 10 or 12 blocks, but Mrs. Nelson estimated that her abduction lasted a total of 2 or 2 1/2 hours.

On this record defendant was charged with and convicted of the following offenses: robbery of Baker (count I), kidnaping of Baker for the purpose of robbery (count II), rape of Mrs. Nelson (count III), kidnaping of Mrs. Nelson for the purpose of robbery (count IV), and robbery of Mrs. Nelson (count V). On the kidnaping counts the jury further found that each victim 'was subjected to bodily harm.' In such circumstances Penal Code section 209 directs that the defendant shall suffer either death or life imprisonment without possibility of parole, and vests this choice in the trial jury. Here, however, the jury were not called upon to make this determination, but were erroneously discharged upon rendering their verdicts. The court thereafter denied a motion for new trial and a motion to reduce the convictions on counts II and IV to simple kidnaping (Pen.Code, § 207), and entered judgment sentencing defendants on those counts to life imprisonment without possibility of parole. The court suspended the imposition of sentence on the rape and robbery counts. ¹

The judgment was affirmed by the Court of Appeal in an unpublished opinion on February 24, 1969, and we denied a hearing. On October 2, 1969, we filed our decision in People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, reconsidering the intent of the Legislature in amending Penal Code section 209 in 1951; on March 24, 1971, we filed our decision in People v. Mutch, 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633, holding that a defendant whose conviction under section 209 became final before our decision in Daniels is entitled to post-conviction relief upon a showing that, as a matter of law, his conduct was not prohibited by the statute as we construed it in Daniels.

Defendant, now represented by other counsel, petitions for recall of the remittitur on the foregoing grounds. Upon analysis of the record, however, a more fundamental issue has emerged for decision, i.e., whether defendant received constitutionally effective assistance of counsel on appeal within the meaning of In re Smith (1970) 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969. As will appear, we conclude that defendant was denied that assistance and hence is entitled to a redetermination of his appeal.

The defendant in Smith was convicted on multiple counts of kidnaping and rape. The sole brief filed by his court-appointed counsel on appeal, however, consisted of a 20-page recitation of facts and a one-page argument which made only a single point, i.e., that the defendant was entitled to reversal because the People had failed to expressly prove he was not married to his rape victim. The Court of Appeal held the contention to be devoid of merit, and affirmed the judgment.

On the defendant's subsequent petition for habeas corpus, we agreed that his counsel's point on appeal was frivolous but went on to observe that the record would have supported a number of other, far more substantial allegations of error. These contentions related primarily to the fairness of the lineup identification procedure and the sufficiency of the evidence to establish critical elements of the attempted kidnaping count. We explained (at [6 Cal.3d 524] p. 202, 90 Cal.Rptr. at p. 7, 474 P.2d at p. 975) that 'We have catalogued the arguments which petitioner's counsel failed to offer on behalf of his client, not because we conclude that petitioner was likely to obtain a reversal on appeal, but only to demonstrate that his appellate counsel did not render the thoughtful assistance to which he was entitled. Petitioner need not establish that he was entitled to reversal in order to show prejudice in the denial of counsel.' Rather, we concluded (3 Cal.3d at pp. 202--203, 90 Cal.Rptr. at p. 7, 474 P.2d at p. 975), 'the inexcusable failure of petitioner's appellate counsel to raise crucial assignments of error, which arguably might have resulted in a reversal, deprived petitioner of the effective assistance of appellate counsel to which he was entitled under the Constitution.' Accordingly, we treated the petition as an application to recall the remittitur, transferred the cause to the Court of Appeal with directions to recall its remittitur, vacate its decision, reinstate the appeal, and appoint other counsel for the defendant.

The appellate history of the case at bar is strikingly similar to Smith. Here, as we have seen, defendant stood convicted of no less than five serious felonies involving rape, robbery, and aggravated kidnaping, and was sentenced on two of those counts to the most severe penalty short of death--imprisonment for the rest of his natural life without possibility of parole. Yet despite the extreme gravity of defendant's predicament, his court-appointed counsel on appeal appears to have accorded him only pro forma assistance. Counsel's opening brief was not filed until six months after the record on appeal was prepared, and even so amounted to less than six pages in all. Of these, two pages were devoted to reciting the procedure below, two and one-half pages summarized the trial testimony, and one page presented counsel's entire argument for reversal--the futile claim that the trial court was guilty of 'abuse of discretion' in denying a pretrial motion to sever the Baker counts from the Nelson counts.

The frivolity of counsel's contention may be readily shown. Penal Code section 954 specifically allows an accusatory pleading to charge 'two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts . . .; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may In its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately' (italics added). Here the two offenses which defendant was accused of perpetrating on Baker were obviously 'connected together in their commission,' as were the three involving Mrs. Nelson. Joinder of these two groups of charges, in turn, was proper under section 954: the two robberies, like the two kidnapings, were obviously 'offenses of the same class,' and it is well settled that the crime of rape shares with robbery and kidnaping sufficient common characteristics as an assaultive crime against the person to be jointly chargeable...