Ridenour, In re
| Decision Date | 03 August 1973 |
| Docket Number | Cr. 23020 |
| Citation | 33 Cal.App.3d 792,109 Cal.Rptr. 370 |
| Parties | In the Matter of Ronald M. RIDENOUR, Petitioner. |
| Court | California Court of Appeals Court of Appeals |
Finkel & Herring, per Neil M. Herring, Los Angeles, for petitioner.
Burt Pines, City Atty., and Gerry L. Ensley, Deputy City Atty., for real party in interest, People of the State of California.
Petitioner Ridenour, by way of habeas corpus filed with the Supreme Court and transferred to this court, seeks to recall a remittitur issued by the Appellate Department of the Superior Court, dismissing his appeal from a judgment of conviction in the Municipal Court, asserting in his petition violation of state policy to hear appeals (In re Parker (1968), 68 Cal.2d 756, 760, 69 Cal.Rptr. 65, 441 P.2d 905), deprivation of appeal in violation of Penal Code, section 1466, subdivision 2(a), and deprivation of effective counsel on appeal, in violation of the Sixth Amendment of the United States Constitution.
Petitioner, represented at the trial and at the time of sentence by Daniel M. Lund and Joan Andersson, was found guilty by a jury for violation of Penal Code, section 148, Penal Code, section 415, and Municipal Code, section 41.18(a), and on January 21, 1971, severally sentenced on said offenses with execution thereof suspended for three years on condition that petitioner serve the first 180 days in county jail, with concurrent terms in the county jail of six months, three months and six months, respectively.
On January 21, 1971, petitioner, through Lund and Andersson, filed a written notice of appeal. A proposed statement of facts on appeal due for filing on or before January 26, 1971, was extended to February 25, 1971. On February 25, 1971, petitioner filed a proposed statement reciting that his argument would be based chiefly on the evidence set forth in the reporter's transcript, and that as provided by Rule 184(a) of the California Rules of Court, 1 it would be filed and made a part of the record.
On March 12, 1971, petitioner requested that attorney Luke McKissack be substituted as attorney on appeal, and a purported substitution of attorneys signed by petitioner and McKissack, but unsigned by Andersson and/or Lund, was filed on that date. On the same day, March 12, 1971, McKissack filed a notice of motion for an order directing the preparation of a reporter's transcript at county expense.
In letters to Lund, Andersson and McKissack on April 1, 1971, the trial judge advised all three attorneys that a substitution of attorneys cannot be granted until there is an appearance in court by the prior attorneys consenting to such substitution, and that the motion for preparation of a transcript at county expense could not be granted without proof of an attempt to reach a settled statement and proof of the indigence of petitioner. No affidavit of indigence was ever filed.
At hearing on May 4, 1971, to determine these matters, Lund and Andersson were ordered to serve an amended proposed statement on William Reidder, prosecution counsel at trial, and to meet with Reidder prior to May 18, 1971, to discuss points of disagreement in the statement, and also directed the three attorneys to confer with him on May 25, 1971, to attempt to draw up an engrossed settled statement. No amended substitution of attorneys was ever filed and neither Lund nor Andersson appeared as ordered at the conference on May 25, 1971. On the same day, four months after petitioner had indicated he decided to include a reporter's transcript, the trial judge ordered the cause transferred to the Appellate Department of the Superior Court as a docket appeal and on September 29, 1971, the appeal was docketed in accord with Rule 183(b), including the statement on appeal already on file but without the reporter's transcript since it had not been filed. On October 26, 1971, petitioner, pursuant to Rule 186(b), moved for relief from the provisions of Rule 187, 2 or in the alternative for an order directing a hearing to settle a statement of facts. Pursuant to said motion the court, on January 3, 1972, made an order relieving petitioner from his default in failing to serve and file a proposed statement on appeal within the time required. On January 10, 1972, 11 months after his first indicated desire to include the reporter's transcript, petitioner filed an amended statement on appeal and a notice of intention to file a reporter's transcript. On January 25, 1972, the court granted an extension of time to February 24, 1972, to file the reporter's transcript. A further and final extension of time was granted to March 24, 1972.
On June 7, 1972, no reporter's transcript having been filed, petitioner was ordered by the court to show cause why his appeal should not be dismissed under Rule 190 because of lack of due diligence in proceeding with the appeal.
On June 29, 1972, 18 months after his original notice of appeal, petitioner's appeal was dismissed. A petition for rehearing was denied on July 14, 1972, and the remittitur was ordered to issue forthwith.
On July 31, 1972, petitioner, in pro per, moved pursuant to Rules 191(d) and 186(b) for recall of the remittitur and relief from default. He alleged his failure to submit a reporter's transcript was due to misinformation given him by his attorney Lund, who did not inform him that full payment of the deposit was required before the reporter's transcript could be prepared.
On August 21, 1972, petitioner's petition filed in pro per for writ of habeas corpus was denied but pending determination of his motion to recall the remittitur previously made as noted above the Appellate Department on August 22, 1972, did issue a writ of supersedeas, which had also been filed in pro per pending determination of the motion to recall remittitur. On August 24, 1972, the Appellate Department appointed Judge Charles H. Church of the Superior Court as Special Master to take evidence on the petitioner's charge in the motion to recall that the defaults of petitioner's counsel were so serious 3 as to deprive him of effective aid of counsel in appeal within the requirements of In re Smith, 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969, and People v. Rhoden, 6 Cal.3d 519, 99 Cal.Rptr. 751, 492 P.2d 1143.
Judge Church, as Special Master, after five days of hearings made his written report to the Appellate Department and thereafter, on February 2, 1973, the Appellate Department, reciting the findings of the Special Master, made an order denying the motion to recall the remittitur, which order recited in pertinent part:
'By this unusual motion to recall the remittitur, it is now urged that appellant was denied the effective assistance of counsel. Although the Special Master found that appellant 'did not have adequate and effective counsel on his appeal', he also found appellant was 'not an uninformed, unintelligent person' and that he did not have 'unlimited faith and confidence in the competency of' his attorneys of record 'and took no steps during the long period of delay to protect his own interests.' The report further notes . . . 'The appellant has been free on bail at all times and apparently did very little if anything to inquire about or to contract his attorneys with respect to the progress of his appeal from the date of his trial (January 21, 1971) until February, 1972. His first payment, in part, for the preparation of a transcript was made on March 16, 1972. An inference can be drawn from the record that so long as he was not in imminent danger of having to serve his sentence, the appellant was not concerned about bringing the matter to an early conclusion.''
Petitioner's motion for a rehearing in the Appellate Department of the order of February 2, denying the motion to recall the remittitur, was denied on February 23, 1973.
Habeas corpus proceedings, seeking the same relief petitioner now seeks, were initiated in the Appellate Department by petitioner and denied on August 24, 1972. Thereafter, on February 23, 1973, we denied a petition substantially similar in all respects to the one now before us. Thereafter, on March 7, 1973, a petition for the writ was, as indicated at the outset, made to the Supreme Court which issued an order to show cause and transferred the case for hearing to this court.
Two days prior to July 12, 1973, the day set for oral argument of the order to show cause before this court, petitioner, now represented by Finkel and Herring, per Herring, moved in writing 4 and reiterated the motion orally on the day of argument, to wit, that petitioner be permitted to augment the record on appeal with a reporter's transcript of the hearings had before the Special Master. Both motions were denied. No prior attempt had been made to obtain such augmentation. No affidavit or declaration has been filed nor has any statement been made by petitioner or anyone else on behalf of petitioner which remotely suggests that any arrangements have been made or conversations had with the reporter for the preparation of such transcript. No affidavit of indigency has been filed in this court or the Superior Court. In fact, there is nothing in the record before us, nor is there anything in the Superior Court file which we have before us on our order of augmentation, which includes a transcript of the testimony taken before the Special Master or which shows that the reporter's transcript of the trial held in December of 1970 which petitioner noted as early as February 25, 1971, was vital as an addition to his statement on appeal, has ever been filed in the Superior Court.
It is settled that although entitled to 'great weight,' the Appellate Department was not nor is this court bound by the findings of the Special Master (People v. Acosta, 71 Cal.2d 683, 687, 78 Cal.Rptr. 864, 456 P.2d 136), and we are sensitive to the fact that a considered independent determination of whether such...
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