People v. Wells

• Decision Date: 23 April 1968
• Docket Number: Cr. 1891
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wesley Robert WELLS, Defendant and Appellant.

Page 400

68 Cal.Rptr. 400

261 Cal.App.2d 468

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wesley Robert WELLS, Defendant and Appellant.

Cr. 1891.

Court of Appeal, Third District, California.

April 23, 1968.

Hearing Denied June 19, 1968.

Garry Dreyfus & McTernan, Charles R. Garry, Donald L. A. Kerson, Aubrey Grossman, San Francisco, Leo Branton, Jr., Los Angeles, by Donald L. A. Kerson, San Francisco, for defendant-appellant.

Thomas C. Lunch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond Momboisse, Deputy Atty. Gen., Sacramento, for plaintiff-respondent.

FRIEDMAN, Associate Justice.

In 1944 a jury convicted defendant Wells, a prisoner in Folsom State Prison, of possessing a knife in violation of Penal Code, section 4502. He was sentenced to the term of not less than five years then fixed by that statute. ¹ He had discharged his attorney during the trial and conducted his appeal without counsel. His brief was prepared by a fellow inmate. This court affirmed the conviction. (People v. Wells (1945) 68 Cal.App.2d 476, 156 P.2d 979.)

In 1947 another prison affray resulted in Wells' conviction of aggravated assault by a prisoner serving a life sentence, a violation of Penal Code, section 4500. The latter conviction was affirmed on appeal by the State Supreme Court. (People v. Wells (1949) 33 Cal.2d 330, 202 P.2d 53.) One of the rulings on that appeal was that the 'not less than five (5) years' sentence imposed by the 1944 judgment was, under California law, a life sentence which brought Wells within the terms of section 4500. (See also Ex parte Wells (D.C. 1950) 90 F.Supp. 855; In re Wells (1950) 35 Cal.2d 889, 221 P.2d 947; Ex parte Wells (D.C.1951) 99 F.Supp. 320, 321; Wells v. State of California (D.C.1964) 234 F.Supp. 467, affd. (9 Cir. 1965) 352 F.2d 439, cert. den. (1966) 384 U.S. 1009, 86 S.Ct. 1968, 16 L.Ed.2d 1021.)

Defendant has now moved to set aside the remittitur which this court issued in affirming the 1944 judgment. The motion has been filed on his behalf by counsel. Primarily he alleges that he was deprived of a fair and meaningful appeal, denied his constitutional right to counsel on appeal and suffered interference by prison officials in his attempts to communicate with the appeal court. A motion to recall the remittitur is an acceptable remedy where the remittitur was issued as the result of a criminal appeal in which the appellant's right to counsel was denied. (People v. Campbell (1966) 239 Cal.App.2d 252, 48 Cal.Rptr. 603; People v. Collins (1963) 220 Cal.App.2d 563, 33 Cal.Rptr. 638.) Lest recall of the remittitur without considering the merits of the proposed appeal needlessly becloud the 1944 judgment which formed the basis of the 1947 conviction, we chose to hear the proposed appeal on its merits without first taking the customary step of acting on the motion to recall remittitur. (Cf., In re Mitchell (1968) 68 A.C. 263, 65 Cal.Rptr. 897, 437 P.2d 289; People v. Campbell, supra, 239 Cal.App.2d 252, 48 Cal.Rptr. 603; see Wells v. State of California, supra, 352 F.2d 439.) At this court's direction briefs were filed by Wells' present counsel and by the Attorney General and opportunity provided for additions to the record and for oral argument debating the proposed appeal. ²

The constitutionally-protected right to counsel on appeal first enunciated in 1963 by Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, receives fully retrospective application. (In re Mitchell, supra, 68 A.C. at p. 268, 65 Cal.Rptr. 897, 437 P.2d 289.) An indigent defendant's failure to request counsel on appeal is not a waiver, for the right does not depend upon a request. (Swenson v. Bosler (1967) 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, 36; see also Anders v. State of California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493.) Closely related to the guarantee of counsel on appeal is another fundamental right, that of reasonable access to the courts. 'Denial or undue restriction of this right is a denial of the due process of law guaranteed to state prison inmates by the Fourteenth Amendment.' (In re Allison (1967) 66 Cal.2d 282, 288, 57 Cal.Rptr. 593, 596, 425 P.2d 193, 196.) The primary purpose of the latter right is to assure full and timely judicial review of the prisoner's conviction if he desires review. (Ibid.) Wells invokes the right of access to the courts, for he asserts that the prison officials interfered with his attempts to communicate with this court while his appeal was pending.

In 1944 this court did not automatically appoint counsel for convicted appellants claiming indigence, nor did it routinely inform them of a right to counsel on appeal. At that time, the filing of a record on appeal would evoke a notice from the court clerk to the appellant, instructing him to file his brief within a designated period. Upon the filing of a brief In propria persona, the court would make an independent investigation of the record for error other than that urged by the appellant. The court would grant an application for appointment of counsel when that action seemed advantageous to the defendant or helpful to the court. (See People v. Wilson (1962) 208 Cal.App.2d 256, 257, 25 Cal.Rptr. 97.) Such appears to have been a customary procedure among California appellate courts in the years preceding Douglas v. People of State of California. (See People v. Hyde (1958) 51 Cal.2d 152, 154, 331 P.2d 42; People v. Douglas (1960) 187 Cal.App.2d 802, 812, 10 Cal.Rptr. 188; People v. Logan (1955) 137 Cal.App.2d 331, 332--333, 290 P.2d 11.) Wells, however, does not claim that he was ignorant of the availability of court-appointed counsel on appeal. Instead, he alleges, truthfully or not, that he sought such counsel at the hands of this court. Thus he is not in the situation of a defendant deprived of counsel through a coupling of the court's failure to inform him and his own ignorance of his rights.

In a declaration supporting his motion to recall the remittitur, Wells states that during most of the time occupied by his appeal he was held in solitary confinement in Folsom Prison; that his requests for access to the law library were rejected; that his brief on appeal was prepared by another inmate who was not a lawyer; that he wrote letters to this court declaring that he was indigent and needed a court-appointed lawyer to prosecute his appeal; that the prison officials refused to transmit these letters because they contained criticism of the prison administration. The inmate who wrote the brief states that, aside from brief messages, he had no opportunity to confer with Wells, and the brief was largely the product of his own guesswork.

The Attorney General has filed copies of prison records demonstrating that Wells was aggressive during the period in question; that he told the warden he would have access to a knife so long as he was at Folsom; that he indulged in frequent outbursts of physical violence, which included attacks upon prison guards and a prison doctor. These records convince us that Wells' solitary confinement during the period of his appeal was necessitated by his own violent, assaultive behavior; that the prison authorities acted out of concern for discipline and safety, not from a desire to prevent him from conducting an effective appeal.

Prisoners have a right to prompt and timely access by mail to the courts. (In re Ferguson (1961) 55 Cal.2d 663, 676, 12 Cal.Rptr. 753, 361 P.2d 417.) Wells' asserting that this right was denied him is not credible. This court finds untrue his allegation that prison officials intercepted and withheld letters requesting this court to appoint counsel on appeal. There are four grounds for so finding: First, routine records of incoming and outgoing prisoner mail fail to designate any such letters, although they include one entry of a 'stop' on an unrelated letter by Wells. Second, in a sworn declaration attached to the Attorney General's return, the then warden of Folsom Prison declares that he had a consistent policy 'to permit free communication between inmates and the Appellate Courts with respect to any appellate matter,' including letters which criticized prison officials. Third: Wells wrote to this court on January 13, 1945, requesting a copy of the respondent's brief, and on February 3, 1945, complaining of hindrances by prison officials and confiscation of his legal papers (including, apparently, a draft of his closing brief), requesting a two-week continuance and expressing a wish to file a closing brief. Although critical of the prison officials, the February 3 letter passed the prison censorship, a circumstance quite inconsistent with Wells' allegation that other critical letters to the court were barred from the mail. ³

The fourth basis is an inference drawn from correspondence between Wells and the warden. On November 19, 1944, he wrote the warden stating that he needed assistance in the presentation of his appeal and wished to confer with his 'collaborater' for that purpose. On November 20 the warden sent him the following note: 'IF BY YOUR COLLABORATOR YOU MEAN YOUR ATTORNEY YOU WILL BE PERMITTED TO HAVE AN OPEN INTERVIEW WITH HIM ANY TIME HE CALLS AT THIS INSTITUTION.' On November 21 Wells wrote the warden reminding him that he had no attorney and was 'on court record' as representing himself; that he was not in a position to prepare his case properly; that he wished a named inmate (the word 'inmate' being heavily underscored) to help him present his appeal; that he also needed a typewriter and access to law books; repeating, at the end, the name of the inmate with whom he wanted to confer. Two notes from the warden dated November 22 informed Wells that no inmate would be permitted to go to this cell but that a typewriter and any needed law book would be secured for him. Wells' letters lead us to the view that he was deliberately maintaining a choice he had made in the...