Spears, In re

• Decision Date: 29 June 1984
• Citation: 157 Cal.App.3d 1203,204 Cal.Rptr. 333
• Court: California Court of Appeals Court of Appeals
• Parties: In re Robert Allen SPEARS, On Habeas Corpus. G000792.

Page 333

204 Cal.Rptr. 333

157 Cal.App.3d 1203

In re Robert Allen SPEARS, On Habeas Corpus.

G000792.

Court of Appeal, Fourth District, Division 3, California.

June 29, 1984.

Hearing Denied Aug. 30, 1984.

[157 Cal.App.3d 1206] Quin Denvir, State Public Defender, Ralph H. Goldsen and Richard Lennon,

Deputy State Public Defenders, for petitioner.

John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Robert M. Foster, Deputy Attys. Gen., for respondent.

OPINION

TROTTER, Presiding Justice.

Petitioner was convicted of kidnapping for purpose of robbery (Pen.Code, § 209) and three counts of robbery with gun use (Pen.Code, §§ 211, 12022.5). He was sentenced to state prison for life with possibility of parole for the kidnapping, with an additional six year term consecutive to that for one of the robbery counts, firearm use, and a prior conviction. Petitioner's term is thus 13 years to life. (Pen.Code, § 3046; People v. McGahuey (1981) 121 Cal.App.3d 524, 175 Cal.Rptr. 479.) On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 with the Fourth Appellate District, Division Two, on December 10, 1981 (case number 4 Crim. 12781), informing the court that he had found no arguable issues. Petitioner's convictions and sentences were affirmed on December 23, 1981.

On June 22, 1983, petitioner filed a petition for writ of habeas corpus with this court. He contends his case should be remanded for resentencing because the trial court failed to state reasons for imposing a consecutive sentence of six years beyond the seven years to life sentence imposed for the kidnapping for robbery conviction. Petitioner further alleges that appointed appellate counsel rendered ineffective assistance in failing to raise that issue in his appeal. This court issued an order to show cause why the petition should not be granted on March 2, 1984.

I. FACTS

On June 6, 1980, petitioner entered the Ace Old Furniture Store in Garden Grove and asked a salesperson for change. When the register was opened, petitioner produced a gun, took the contents, and ordered the salesperson into the back of the store. He then left.

In early July 1980, Mark Baker, who sold speakers from a van, made his sales pitch to petitioner on a street in Orange County. Petitioner expressed interest and gave Baker his telephone number. Baker called later and arranged to meet petitioner. When they met, petitioner and a companion looked at the speakers briefly, then petitioner pointed a gun at Baker and tied him up in the back of the van. They drove elsewhere and unloaded the speakers. At another location, Baker was left alone in the van and escaped.

On September 9, 1980, petitioner and a companion entered a pharmacy in Placentia and ordered the pharmacist and sales clerk at gunpoint to hand over drugs and money. They then left. Petitioner was arrested approximately ten days later.

II. PRELIMINARY MATTERS

In their return to the petition, the People allege we should not consider petitioner's claim for the following reasons: (1) the petition is barred by the doctrine of laches; (2) since petitioner could have raised the sentencing issue he raises here in his prior direct appeal but did not do so, his claim is barred; and (3) since the ultimate issue sought to be reached by petitioner is not one creating a fundamental jurisdictional or constitutional error, it is not the proper subject of a petition for a writ of habeas corpus. We disagree.

Approximately 18 months elapsed from the time the Court of Appeal issued its opinion affirming petitioner's convictions until the date the instant petition was filed. Through his own declaration and that of his present counsel, petitioner has adequately explained this delay as attributable to his lack of capacity to represent himself (see In re Saunders (1970) 2 Cal.3d 1033, 1040, 88 Cal.Rptr. 633, 472 P.2d 921) and the scarcity of channels through which legal assistance is available to indigent prisoners. Petitioner attempted to obtain legal assistance to pursue his case immediately upon affirmance of his conviction and has been neither dilatory nor in any other way culpable for the delay. Additionally, 18 months is not a significant delay. (In re Hancock (1972) 67 Cal.App.3d 943, 945, fn. 1, 136 Cal.Rptr. 901.) Moreover, the rights of the People are not harmed by the delay. (See In re Bartlett (1971) 15 Cal.App.3d 176, 186, 93 Cal.Rptr. 96.) Accordingly, the petition is not barred by the doctrine of laches.

The People's contention petitioner's claim of excessive sentence is barred because he could have raised the issue in his prior direct appeal but did not is also without merit. Habeas corpus ordinarily cannot serve as a second appeal or as a substitute for an appeal. (In re Terry (1971) 4 Cal.3d 911, 927, 95 Cal.Rptr. 31, 484 P.2d 1375; In re Eli (1969) 71 Cal.2d 214, 219, 77 Cal.Rptr. 665, 454 P.2d 337; In re Waltreus (1965) 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001.) However, habeas corpus is the appropriate means to remedy deprivation of the effective assistance of appellate counsel. (In re Banks (1971) 4 Cal.3d 337, 93 Cal.Rptr. 591, 482 P.2d 215.) Thus, if, as petitioner contends, he was deprived of the effective assistance of appellate counsel by counsel's failure to raise the sentencing issue on appeal, then his claim is not barred and habeas corpus is the appropriate means of relief.

Of somewhat greater significance is the People's claim that since the ultimate sentencing issue sought to be reached by petitioner is not one creating a fundamental jurisdictional or constitutional error, it is not the proper subject of a petition for a writ of habeas corpus. Habeas corpus does not lie unless the asserted defect in the proceedings constitutes a fundamental jurisdictional or constitutional error. (See In re Sands (1977) 18 Cal.3d 851, 856, 135 Cal.Rptr. 777, 558 P.2d 863; In re Coughlin (1976) 16 Cal.3d 52, 55, 127 Cal.Rptr. 337, 545 P.2d 249; In re Winchester (1960) 53 Cal.2d 528, 531-532, 2 Cal.Rptr. 296, 348 P.2d 904.) The issue raised here is whether petitioner was deprived of effective assistance of appellate counsel by his failure to raise the excessive sentence issue on appeal. The asserted defect is the deprivation of effective assistance of appellate counsel, which is clearly fundamental constitutional error cognizable in a habeas corpus proceeding. (See People v. Barton (1978) 21 Cal.3d 513, 146 Cal.Rptr. 727, 579 P.2d 1043; In re Banks, supra, 4 Cal.3d 337, 93 Cal.Rptr. 591, 482 P.2d 215; see also Gilbert v. Sowders (6th Cir.1981) 646 F.2d 1146; Ross v. Moffitt (1974) 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341; Douglas v. California (1963) 372 U.S. 353, 355, 83 S.Ct. 814, 815, 9 L.Ed.2d 811; Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.) The People offer no authority to the contrary nor do we find any.

Relying on the case of In re Sands, supra, 18 Cal.3d 851, 135 Cal.Rptr. 777, 558 P.2d 863, the People nevertheless argue that since the ultimate issue sought to be reached (i.e., the trial court's failure to state its reasons for imposing consecutive terms) constitutes neither a fundamental jurisdictional nor constitutional error, habeas corpus does not lie. Their reliance on Sands is misplaced, however, and we find no authority for their position. In Sands no claim of ineffective assistance of counsel was made. Rather, our Supreme Court held the failure of the trial court to require the state to comply with statutory requirements it seek restitution prior to the bringing of a criminal action did not constitute a fundamental jurisdictional defect entitling the petitioner to overturn the conviction by collateral attack because restitution does not constitute a defense to the crime of welfare fraud and the criminal conviction would stand even if restitution were made. Petitioner had raised in the lower courts the issue of the state's failure to seek restitution prior to the filing of the complaint. ¹

Further, we find no support for the People's contention the ultimate issue sought to be reached must, in and of itself, be cognizable in a habeas corpus proceeding in order for a claim of ineffective assistance of appellate counsel based on counsel's failure to raise that underlying defect to be cognizable. To the contrary, it has been held, for example, the issue of insufficiency of the evidence to support a conviction is not cognizable in and of itself in a habeas corpus proceeding. (See In re Adams (1975) 14 Cal.3d 629, 636, 122 Cal.Rptr. 73, 536 P.2d 473; In re Lindley (1947) 29 Cal.2d 709, 723, 177 P.2d 918.) However, a claim of incompetence of appellate counsel based on failure to raise the issue of insufficiency of the evidence is cognizable in a habeas corpus proceeding. (See, e.g., In re Smith (1970) 3 Cal.3d 192, 200, 90 Cal.Rptr. 1, 474 P.2d 969.) Accordingly, we find the present petition to be properly before this court and it is immaterial the ultimate issue sought to be reached might not, in and of itself, be cognizable in a habeas corpus proceeding.

III. PETITIONER'S CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Petitioner contends he was denied the effective assistance of appellate counsel because his court-appointed appellate counsel was incompetent for failing to raise the issue of the trial court's failure to state reasons for imposing consecutive sentences which arguably might have resulted in a remand for resentencing. He asks this court to issue a writ vacating his sentence and remanding him to the trial court for resentencing, in effect requesting a determination of the issue on the merits.

The Fourteenth Amendment to the federal Constitution requires that an indigent accused be afforded the assistance of competent counsel on appeal. (See Gilbert v. Sowders, supra, 646 F.2d 1146; Ross v. Moffitt, supra, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341; Douglas v. California, supra, 372...