Rose, In re

• Decision Date: 02 February 1965
• Docket Number: Cr. 7856
• Citation: 62 Cal.2d 384,42 Cal.Rptr. 236,398 P.2d 428
• Court: California Supreme Court
• Parties: , 398 P.2d 428 In re Glenn ROSE on Habeas Corpus.

Page 236

42 Cal.Rptr. 236

62 Cal.2d 384, 398 P.2d 428

In re Glenn ROSE on Habeas Corpus.

Cr. 7856.

Supreme Court of California, In Bank.

Feb. 2, 1965.

As Modified Feb. 3, 1965.

Lin B. Densmore, San Francisco, for petitioner.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Albert W. Harris, Jr., Robert R. Granucci and Michael J. Phelan, Deputy Attys. Gen., for respondent.

PETERS, Justice.

On this petition for habeas corpus petitioner contends that he was so inadequately represented at the trial court level that, in fact, he did not have any representation at all, and so was deprived of his constitutional right to counsel. (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792.)

This case had its inception in 1958. In that year petitioner was charged with kidnaping (Pen.Code, § 207), assault by means of force likely to produce great bodily injury (Pen.Code, § 245) and oral copulation (Pen.Code, § 288a). At all pertinent times he was represented by counsel of his own choice.

Petitioner pleaded not guilty to all three charged offenses. He later changed his plea to guilty of the kidnaping and assault charges, and the 288a charge was dismissed. Probation was denied and he was sentenced to the state prison. He appealed. On that appeal he, in propria persona, and Gartner Thomas, his trial court attorney, were permitted to file briefs. The judgment was affirmed (People v. Rose, 171 Cal.App.2d 171, 339 P.2d 954). The appellate court held that (p. 172, 339 P.2d p. 955): 'Appellant's contention is based wholly on the claim that he pleaded guilty only on the assurance of his attorney that he 'would positively be given probation.' But assurances of a defendant's own attorney are not sufficient to vitiate a plea of guilty. (Citations.) Such representations can avail a defendant only when there is an apparent corroboration of them by the acts or statements of a responsible state officer. (Citation.) Even if this proceeding be deemed an original application in the nature of coram nobis, and the briefs be considered as affidavits, they fail to show the essential element of such corroboration.'

In 1962 petitioner moved to vacate the judgment on the ground that his trial court representation was totally inadequate in that such attorney promised him that he would get probation if he pleaded guilty, never told him that he could be imprisoned, and never discussed possible defenses with him. The District Court of Appeal dismissed the motion, and this court denied a hearing. Habeas corpus, based on the same grounds, was denied by the United States District Court. The Court of Appeals affirmed on the sole ground that petitioner had not exhausted his state remedies. (Rose v. Dickson, 9 Cir., 327 F.2d 27.) That opinion motivated the present habeas corpus proceeding.

The petition is supported by the affidavit of Attorney Thomas in which it is averred that the affiant never discussed possible defenses with Rose, that affiant told Rose he would get probation, and did not inform him that he might get a prison term. Affiant further avers that in his opinion Rose pleaded guilty not because he was guilty but because he believed he would get probation.

This claim of lack of effective aid of counsel was not made in the trial court or on the appeal. There the claim was defendant relied on the representation of counsel that he would get probation, and that point was correctly held on appeal to lack merit because of the lack of participation by any responsible state officer. No claim of such participation is now made, but it is urged that because of such representation of his attorney, and the other claimed deficiencies of that attorney, petitioner was deprived of the effective aid of counsel to which he was constitutionally entitled. Of course, a defendant has the constitutional right 'to effective aid in the preparation and trial of the case.' (Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158; People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) If in the trial of a serious charge an appointed attorney or even a chosen one grossly neglects the preparation of the case the effect is to deny the defendant the right to counsel. (See Witkin, Cal. Criminal Procedure (1963) p. 365.)

This court appointed a referee, the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County of Marin, to determine the facts. The following three questions were submitted to him:

1. Did the attorney who represented Rose at the time of the plea of guilty advise him that he would be granted probation?

2. Did the attorney advise Rose of the possibility of imprisonment or the maximum terms for the offenses charged?

3. Did the attorney discuss with Rose possible defenses which might be urged?

The referee held a hearing. Attorney Thomas testified in conformity with the averments of his affidavit. There was no direct contrary evidence. Petitioner, although present at the hearing, did not testify in corroboration of his attorney, or otherwise. The only other witnesses were a police officer and the deputy district attorney who had handled the original prosecution. They testified that in response to questions of Attorney Thomas they told him the evidence was pretty bad, that the offenses of kidnaping and assault were offenses subject to probation, but they certainly did not tell him that probation would be or was likely to be granted, or that they would recommend probation.

The referee apparently did not believe the attorney. While noting that his findings were contrary to the 'literal' testimony in the record, he found:

'Concerning issue 1, supra, your Referee finds that the attorney who represented Rose at the time of the plea of guilty did not advise Rose that he would be granted probation.

'Concerning issue 2, supra, your Referee finds that petitioner's allegation that his trial counsel did not advise petitioner of the consequences of a guilty plea, nor the seriousness, in terms of punishment, of the crimes to which petitioner was pleading guilty, nor that a guilty plea might result in imprisonment rather than probation, is not true and further finds that the attorney did advise Rose of the possibility of imprisonment and the maximum terms for the offenses charged.

'Concerning issue 3, supra, this Referee finds that the attorney did discuss with Rose possible defenses which might be urged.'

Of course, these findings are not binding on this court, although they are entitled to great weight. (People v. Johnson, 61 A.C. 938, 941, 40 Cal.Rptr. 708, 395 P.2d 668; People v. Tucker, 61 A.C. 921, 924, 40 Cal.Rptr. 609, 395 P.2d 449; In re Riddle, 57 Cal.2d 848, 853, 22 Cal.Rptr. 472, 372 P.2d 304; In re De La Roi, 27 Cal.2d 354, 364, 164 P.2d 10; In re Marvich, 27 Cal.2d 503, 516, 165 P.2d 241; In re Imbler, 60 Cal.2d 554, 562, 35 Cal.Rptr. 293, 387 P.2d 6; In re Mooney, 10 Cal.2d 1, 17, 73 P.2d 554.)

Undoubtedly the findings of the referee are predicated upon the belief that the attorney was not to be believed. This is clearly implied from the report filed by the referee in support of his findings. In that report he states that 'the reporter's transcript is ponderous with testimonial facts which would tend to induce upon a disinterested and impartial intellect, an abiding conviction that petitioner's attorney of the first instance, was possessed of knowledge, and only of knowledge, that in the opinion of the Police Officer Smith and Deputy District Attorney Baldwin with whom, and only with whom said attorney consulted, this was not a case for probation, that the charges were extremely serious, that probation would not be recommended by them or either of them, that from a standpoint of law the petitioner would be 'eligible' for probation and that they would have no objection to probation.

'The attorney admitted that no person ever told him or suggested that it was a case for probation or that probation would be granted, albeit the attorney testified that he felt 'sure' or 'pretty sure' that probation would be granted inasmuch as the petitioner was without a criminal record.

'It is incomprehensible to believe that the attorney would violate the ethics of his profession by advising his client under the circumstances that he would be granted probation.

'Your Referee is not hospitable to the belief that the attorney either before or at the time of the change of pleas, advised petitioner that he would obtain probation.

'In the first instance, and admittedly, the attorney had never been advised by any person that probation would be granted, but merely that the petitioner appeared eligible for probation as a matter of law.

'Among the inferences and deductions which have participated in the above conclusion is the circumstance that the...