Shipp, In re

• Decision Date: 12 March 1965
• Docket Number: Cr. 8174
• Citation: 43 Cal.Rptr. 3,399 P.2d 571,62 Cal.2d 547
• Court: California Supreme Court
• Parties: , 399 P.2d 571 In re Oscar SHIPP on Habeas Corpus.

Page 3

43 Cal.Rptr. 3

62 Cal.2d 547, 399 P.2d 571

In re Oscar SHIPP on Habeas Corpus.

Cr. 8174.

Supreme Court of California, In Bank.

March 12, 1965.

Rehearing Denied April 6, 1965.

Oscar Shipp, in pro. per., Frederic Campagnoli, San Francisco, under appointment by the Supreme Court, and William E. Holliman, Oakland, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., and Derald E. Granberg, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

A jury convicted petitioner of the robbery of Bernard Wilkinson and the robbery and first degree murder of Albert Hawley. For the murder of Hawley the jury fixed the penalty at death. We affirmed the judgment on automatic appeal (People v. Shipp (1963) 59 Cal.2d 845, 31 Cal.Rptr. 457, 382 P.2d 577; cert. den. 377 U.S. 999, 84 S.Ct. 1927, 12 L.Ed.2d 1049) and denied a petition for rehearing.

In this proceeding in habeas corpus petitioner contends that the trial court deprived him of rights guaranteed by the Constitution in permitting the introduction of his admissions procured by the police without informing him of his right to counsel and his right to remain silent; that the trial court erroneously allowed the introduction of evidence obtained during an illegal search; and that in the penalty phase the trial court committed error condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. In a supplemental petition, in forma pauperis, petitioner urges further that the trial court should have excluded certain of his admissions elicited during police interrogation since they were coerced.

For the reasons stated below we hold that petitioner fails to establish the right to relief by habeas corpus as to the guilt phase of his trial. We conclude, however, that he is entitled to a new penalty trial.

Petitioner rests his first contention, as to the exclusion of his admissions, upon the decision of the United States Supreme Court in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. We have held, however, that neither Escobedo nor People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, which rests upon Escobedo, may 'be applied to cases which have become final prior to the date that the United States Supreme Court rendered the Escobedo decision.' (In re Lopez (1965) 62 A.C. 380, 384, 42 Cal.Rptr. 188, 191, 398 P.2d 380, 383.) Since the judgment against petitioner became final prior to the United States Supreme Court's decision in Escobedo, he may not attack his conviction on the basis of that case.

Petitioner's second contention consists of an assertion that articles belonging to the murder victim, which the prosecution introduced into evidence, had been seized during an illegal search of his room. (See People v. Shipp (1963) 59 Cal.2d 845, 850, fn. 1, 31 Cal.Rptr. 457, 382 P.2d 577.) Upon petitioner's automatic appeal we held that although the police officers had not obtained a warrant and although the evidence did not clearly demonstrate a valid consent to the search, the introduction of the evidence constituted harmless error. We concluded that it was not reasonably probable that a result more favorable to the petitioner would have been reached if the trial court had excluded the evidence. The admission of evidence obtained by an illegal search and seizure does not require reversal if it constitutes harmless error. (People v. Parham (1963) 60 Cal.2d 378, 384-386, 33 Cal.Rptr. 497, 384 P.2d 1001.) Furthermore, we have held that the admission of illegally obtained evidence may not be challenged on collateral attack. (In re Lessard (1965) Cal., 42 Cal.Rptr. 583, 399 P.2d 39; see In re Harris (1961) 56 Cal.2d 879, 880, 16 Cal.Rptr. 889, 366 P.2d 305, Traynor, J., concurring.)

Urging, thirdly, that the trial court improperly admitted his coerced and involuntary admissions, petitioner narrates the account of the alleged coercion with great particularity. Stating that at the time he was but 19 years old, he claims that the officers arrested him late in the evening of January 2, 1962, and took him to the city police station. Upon his request to be permitted to telephone his brother, the officer told him that he could not do so until he had been booked. He alleges that the police did not advise him of the nature of the charge, of his right to an attorney or of his right to remain silent. After the expiration of the questioning period and the booking process, the police allowed him to sleep only for three hours. In the morning, according to petitioner, he again asked to telephone his brother but encountered a second refusal on the ground that 'all phone calls are made before one is assigned sleeping quarters.'

Petitioner points out that since the police took his shoes for analysis, he was forced to go without them; he was not allowed to shower; he was fed on the average of once a day for four days. He alleges that a police doctor told him that the failure to take a lie detector test indicated guilt and that the police explained that since he was young seven years in jail would be 'nothing.'

Petitioner further states that on January 4, after being handcuffed to a chair for four and one-half hours, an interrogation session began and that during its course the police struck him several times. After his transfer to the county jail on January 5, the police continued the interrogation. On January 8 the police handcuffed him and 'forced' him to accompany them to 'the library' for still further interrogation. Petitioner contends that at this time, after 'he could not physically nor emotionally withstand the unceasing efforts of the police to extract a statement' from him, he made his admissions which, unknown to him, were recorded. He still refused to sign a statement.

At the trial the prosecution introduced the tape recording of the admissions into evidence but the defense interposed no objection based upon their involuntary rendition. To lay a foundation for the admission of the tape recording one of the police officers who had been involved in the interrogation testified that petitioner's statements were given freely and voluntarily and that the police neither used force or violence against petitioner nor promised petitioner immunity or reward. A police officer testified that petitioner was advised of the nature of the charge and of his rights to an attorney and to remain silent. Furthermore, the record shows that petitioner was brought before a magistrate before he made his admissions. Although, as we have noted, petitioner claims that he was not permitted to make a telephone call, he admitted on cross-examination, contrary to his statement in his petition, that, after the booking, he at no time asked to make a call.

At trial, petitioner testified that his admissions were not voluntary, but when asked if someone was 'twisting (his) arm,' he replied that no one did so. He stated that he was brought to 'the library' for interrogation against his will, but admitted that the police used no force. At no time did petitioner testify about the police activities which, in his petition, he alleged occurred. No further evidence bore upon the voluntariness of the admissions.

The trial court charged the jury that it was to decide whether the admissions were voluntarily rendered. On appeal petitioner did not urge such involuntariness in his petition he does not state why he did not tender the issue at trial or on appeal. ¹

We set forth three fundamental reasons why the writ should not issue: first, habeas corpus cannot serve as a substitute for appeal in the absence of special circumstances; second, petitioner neither specifies such special circumstances nor alleges the reasons for his delay in this late presentation, and, third, the recent decisions of the United States Supreme Court do not call for any different resolution of the issue.

The classic limitations upon the writ of habeas corpus in this state have been stated in the often cited opinion, In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513, 514: 'The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.' To the same effect: In re Chapman (1954) 43 Cal.2d 385, 390, 273 P.2d 817; In re Mitchell (1961) 56 Cal.2d 667, 671, 16 Cal.Rptr. 281, 365 P.2d 177. (See Granucci, Review of Criminal Convictions by Habeas Corpus in California (1963) 15 Hastings L.J. 189, 194-198.)

Dixon forcefully applies to the instant case since it, too, involved an attempt to secure the writ upon the basis that the petitioner's confession, which the prosecution introduced, had been obtained by coercion. There, too, petitioner contended that real evidence upon which the prosecution relied had been procured by an unlawful search and seizure. The court disposed of the contentions on the ground that 'the matters of which petitioner complains were before the trial court and * * * there was evidence which would have supported findings that there was no violation of his constitutional rights in connection with his confession or the search and seizure.' (41 Cal.2d p. 762, 264 P.2d p. 516.) Since these issues were argued during the trial and testimony on these matters was conflicting petitioner could not relitigate them in a proceeding in habeas corpus.

We have consistently held that an issue which is raised in the trial court, and upon which conflicting testimony develops, cannot serve as a basis for habeas corpus; we cannot sanction piecemeal presentation or split adjudication of such issues between trial and post-conviction procedure. We have said: 'To permit petitioner to now relitigate that issue would encourage defendants charged with crimes, the jurisdiction over which might depend upon complex factual...