Walker, In re

• Decision Date: 25 February 1976
• Docket Number: Cr. 2587
• Citation: 56 Cal.App.3d 225,128 Cal.Rptr. 291
• Court: California Court of Appeals Court of Appeals
• Parties: In re G. Daniel WALKER, on Habeas Corpus.

Page 291

128 Cal.Rptr. 291

56 Cal.App.3d 225

In re G. Daniel WALKER, on Habeas Corpus.

Cr. 2587.

Court of Appeal, Fifth District, California.

Feb. 25, 1976.

[56 Cal.App.3d 226] G. Daniel Walker, in pro per.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Eddie T. Keller, Deputy Attys. Gen., for respondent.

OPINION

FRANSON, Associate Justice.

On January 2, 1976, petitioner filed a petition for writ of habeas corpus in propria persona with this court. Thereafter, the Supreme Court granted this court's request to have the petition considered in conjunction with petitioner's direct appeal from his conviction (5 Crim. No. 1897.)

Petitioner's basic contention is that his rights and guarantees under the Sixth and Fourteenth Amendments to the United States Constitution and the California Constitution were violated by his being denied the right to represent himself on appeal.

Petitioner also contends that his privileges under the Sixth and Fourteenth Amendments to the United States Constitution and the California Constitution were violated and denied by forcing onto petitioner allegedly incompetent and inadequate appointed counsel on appeal while denying petitioner his right of self-representation.

Neither of these contentions has merit.

Petitioner has no constitutional right of self-representation on appeal.

'An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review . . ..

'It is therefore clear that the right of appeal may be accorded by the state to the accused upon such terms as in its wisdom may be deemed proper.' (McKane v. Durston (1894) 153 U.S. 684, 687--688, 14 S.Ct. 913, 915, 38 L.Ed. 867.)

California has made the right to appeal a statutory creature whose scope and authority is only as specifically delineated. (Superior Wheeler Cake Corp. v. Superior Court (1928) 203 Cal. 384, 386, 264 P. 488; People v. Keener (1961) 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587; Trade v. Superior Court (1943) 21 Cal.2d 630, 634, 134 P.2d 745.)

Once appellate review is established it must be kept free from any procedures which violate due process or equal protection of the law. (Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Ross v. Moffitt (1974) 417 U.S. 600, 609--612, 94 S.Ct. 2437, 41 L.Ed.2d 341.) Thus, Douglas v. California, supra, holds that the states must provide counsel for the indigent on his first appeal as a matter of right; however, Ross v. Moffitt, supra, points out that this right is not unlimited, and the states are free to deny an indigent an appointed attorney at other stages of appellate proceedings.

In Price v. Johnston (1948), 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, the Supreme Court held that although an appellate court has the power to command that a prisoner be produced to argue his own appeal, the exercise of that power is a matter of sound judicial discretion.

'The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. (Citation omitted.) The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution, . . . and to his recognized privilege of conducting his own defense at the trial. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' (334 U.S. 266 at p. 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356.)

Under California law a criminal defendant has neither a constitutional nor statutory right to argue his case on appeal, or to be present during such proceedings. (Pen.Code, § 1255; People v. Ashley (1963) 59 Cal.2d 339, 361, 29 Cal.Rptr. 16, 379 P.2d 496, cert. den., 374 U.S. 819, 83 S.Ct. 1714, 10 L.Ed.2d 1084; People v. Coyle (1948) 88 Cal.App.2d 967, 970, 200 P.2d 546.)

Moreover, under some circumstances, counsel may be appointed on appeal over the defendant's objections. (People v. Ashley, supra, 59 Cal.2d at p. 358, 29 Cal.Rptr. 16, 379 P.2d 496; see also Pen.Code, §§...