Walker, In re

• Decision Date: 14 February 1974
• Docket Number: Cr. 16711
• Citation: 112 Cal.Rptr. 177,10 Cal.3d 764
• Court: California Supreme Court
• Parties: , 518 P.2d 1129 In re Erwin M. WALKER on Habeas Corpus.

Page 177

112 Cal.Rptr. 177

10 Cal.3d 764, 518 P.2d 1129

In re Erwin M. WALKER on Habeas Corpus.

Cr. 16711.

Supreme Court of California, In Bank.

Feb. 14, 1974.

Rehearing Denied March 20, 1974.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby and Edward A. Hinz, Jr., Chief Asst. Attys. Gen., William E. James, Doris H. Maier and Edward P. O'Brien, Asst. Attys. Gen., and Gloria F. DeHart, Deputy Atty. Gen., for appellant.

Atherton Phleger and Brobeck, Phleger & Harrison, San Francisco, for respondent.

Peter J. Donnici, John J. Grey, Charles C. Marson, Joseph Remcho, San Francisco, Peter E. Sheehan, Berkeley and Larry Sleizer, Menlo Park, as amici curiae on behalf of respondent.

BURKE, Justice.

The People appeal from an order granting a writ of habeas corpus which, in its effect, sets aside petitioner Erwin M. Walker's 1947 convictions on one count of first degree murder and two counts of attempted murder. (See Pen.Code, § 1506.) For the reasons hereinafter stated we have concluded that the order must be reversed but that petitioner's sentence of life imprisonment Without possibility of parole for the murder should be modified by the deletion of the italicized words. Since several claims were not reached by the Solano County Superior Court, the case is remanded to that court for consideration of those claims.

Background Facts

In 1947 an indictment was filed charging petitioner with one count of murder and two counts of attempted murder. While represented by counsel, petitioner entered the single plea of not guilty by reason of insanity, thereby admitting 'the offense(s) charged' (see Pen.Code, § 1016). He waived a jury and was found by the Los Angeles Superior Court to have been sane at the time of the crimes. In petitioner's presence his counsel stipulated that the evidence at the sanity trial could be used to determine the degree of, and punishment for, the murder, and no additional evidence was presented on those issues. The court found the murder was first degree and fixed the penalty at death.

On petitioner's appeal this court affirmed the murder conviction and death penalty in 1948 (People v. Walker, 33 Cal.2d 250, 201 P.2d 6), and certiorari was denied in 1949 (336 U.S. 940, 69 S.Ct. 744, 93 L.Ed. 1098). The attempted murder convictions were not appealed and became final in 1947.

Following his prison arrival in 1947, petitioner was found by a psychiatrist to be a paranoid schizophrenic. In April 1949, on the date set for petitioner's execution, psychiatrists found him to be insane, and his execution was stayed. The next month he was adjudicated insane and was committed to a mental hospital, where he underwent electric shock treatments.

In 1961 another sanity hearing was held, and he was adjudicated sane. That same year the Governor commuted petitioner's death sentence to life imprisonment without possibility of parole.

In 1970 petitioner filed a habeas corpus petition in this court, and it was denied without a hearing. Thereafter he filed a similar petition in the Solano County Superior Court seeking relief on the grounds that:

(1) Incriminating statements he made to the police were involuntary, and these statements were improperly introduced into evidence and 'used . . . to force his plea';

(2) His statements to court-appointed psychiatrists were erroneously admitted;

(3) The procedure followed in determining the degree of, and penalty for, the murder was invalid;

(4) He was not afforded effective assistance of counsel (a) at trial and (b) on appeal;

(5) He was denied due process for specified reasons relating to the Wells-Gorshen rule;

(6) The Los Angeles Superior Court erred in not ordering a Penal Code section 1368 sanity hearing; and he was incompetent both at the time of (a) the trial and (b) the appeal.

Subsequently during this proceeding the following additional issue was raised:

(7) Whether the decision in People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, affects petitioner's case. ¹

The Solano County Superior Court issued an order to show cause. Thereafter a return was filed alleging that petitioner was confined pursuant to the lawful order of commitment of the Los Angeles Superior Court and that his restraint was not unconstitutional. According to remarks by defense counsel, it was stipulated that the petition be considered a 'reply' to the return.

Following an evidentiary hearing, which was devoted in large part to psychiatric testimony regarding petitioner's mental condition at various times, the Solano County Superior Court ruled in petitioner's favor on grounds (1) through (4); the court did not decide the remaining issues. The writ was granted, and this appeal is from that order. (In 1972 petitioner was released on bail pending the appeal.)

The evidence at the 1947 trial is summarized in People v. Walker, Supra, 33 Cal.2d 250, 201 P.2d 6, and need not be set forth here in detail. It appears in brief: Petitioner entered the military service in 1941 and was sent to the South Pacific where he was assigned to a group engaged in radar repair in advance invasion areas. Upon his return to the United States in 1945 he began a series of burglaries. In April 1946 an attempted sale of equipment taken in one of the burglaries gave the police a clue to his identity. Officers Forbes and Johnson attempted to arrest petitioner, but he shot his way out, thus committing the attempted murders with which he was charged. In June 1946 he shot and killed Officer Roosevelt during an attempt to perpetrate a burglary of a other crimes, including a series of robberies, and was eventually arrested in December 1946.

People v. Walker, Supra, 33 Cal.2d 250, 255, 201 P.2d 6, 9, states 'Whether (petitioner) embarked on his career of crime with an idea of making society support him and pay for his suffering, or whether he did it, as he claims, under an aberration, was an issue for the trial court,' and this court (Id., at p. 257, 201 P.2d 6) concluded that the evidence supported the trial court's finding of sanity.

1. Petitioner's Allegedly Involuntary Statements to the Police

The petition alleged that incriminating statements petitioner made to the police were involuntary and that these statements were erroneously introduced into evidence at his sanity trial and 'used . . . to force his plea.' At petitioner's trial no objection was made to the admission of the statements on the ground that they were involuntary, and no argument was made on appeal that the statements were involuntary. (People v. Walker, Supra, 33 Cal.2d 250, 259, 201 P.2d 6.) So far as appears the matter was raised for the first time in 1970 in the habeas corpus petition that we denied, and it was raised again in the instant proceeding.

The general rule is that 'habeas corpus cannot serve as a substitute for 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.' (In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513, 514; in accord People v. Morrison, 4 Cal.3d 442, 443, fn. 1, 93 Cal.Rptr. 751, 482 P.2d 663; In re Black, 66 Cal.2d 881, 886--887, 59 Cal.Rptr. 429, 428 P.2d 293; In re Shipp, 62 Cal.2d 547, 551--553, 43 Cal.Rptr. 3, 399 P.2d 571.) Here petitioner sought to excuse the failure to raise the above matter on appeal by alleging, inter alia, that he was then 'incompetent.' The Solano County Superior Court made no express finding with respect to that allegation, nor does it appear that such a finding can be implied. That court declared that 'The contention that (Petitioner) was incompetent throughout the entire proceeding does not now require a decision,' and it would be unreasonable to assume that the court decided whether petitioner was incompetent at the time of his appeal.

It is also the rule that 'a convicted defendant must fully disclose his reasons for delaying in the presentation of'the facts upon which he would have a final judgment overturned. (In re Wells, 67 Cal.2d 873, 875, 64 Cal.Rptr. 317, 434 P.2d 613; In re Shipp, Supra, 62 Cal.2d 547, 553, 43 Cal.Rptr. 3, 399 P.2d 571; In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793.) The People argue that petitioner failed to satisfactorily explain the long delay in seeking relief. Petitioner asserts, and the People do not deny, that the matter of the delay was not argued in the court below. The petition for habeas corpus sought to explain the delay by alleging, inter alia, that petitioner was insane from 1944 to 1961, had no counsel following his appeal until the instant proceeding, and was without knowledge of the law. The Solano County Superior Court made no express findings on these matters, nor does it appear that such findings can be implied.

Even if we assume that special circumstances excused petitioner's failure to employ his remedy of appeal and that there is an adequate excuse for his delay in the presentation of the facts upon which he seeks to have his conviction overturned, as we shall see, his claim that his statements to the police were involuntary is not supportable on this appeal.

In its order granting habeas corpus the Solano County Superior Court stated in part that 'The combination of circumstances Revealed by the testimony of the police (at the murder trial) clearly point to the involuntary character of (petitioner's) incriminating statements.' (Italics Solano County Superior Court stated in added.)

The evidence of the circumstances surrounding petitioner's statements as revealed by the testimony of the police, may be summarized as follows:

Officers Donahue and Wynn testified: Around 2:00 a.m. on December 20, 1946, accompanied by Officers Rombeau, Baughn and Hannon, they went to the petitioner's apartment. They had a key to the apartment, and when they put it in the door they heard someone moving inside. As the door opened, ²...