Wells v. State of California

• Decision Date: 09 October 1964
• Docket Number: No. 64-845.,64-845.
• Citation: 234 F. Supp. 467
• Court: U.S. District Court — Southern District of California
• Parties: Wesley Robert WELLS, Petitioner, v. STATE OF CALIFORNIA, Respondent.

234 F. Supp. 467

Wesley Robert WELLS, Petitioner, v. STATE OF CALIFORNIA, Respondent.

No. 64-845.

United States District Court S. D. California, Central Division.

October 9, 1964.

Garry, Dreyfus & McTernan, Charles R. Garry, Donald L. A. Kerson, and Aubrey Grossman, San Francisco, Cal., Leo A. Branton, Jr., Los Angeles, Cal., for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Gordon Ringer, William L. Zessar, Jack K. Weber, Deputy Attys. Gen., Los Angeles, Cal., for respondent.

CRARY, District Judge.

On June 24, 1964, petitioner WESLEY ROBERT WELLS filed with the United States District Court, Southern District of California, a petition for Writ of Habeas Corpus raising three grounds for relief:

(a) Petitioner was denied his constitutional right to counsel on appeal.

(b) Petitioner was denied his constitutional right to have counsel at his preliminary hearing.

(c) Petitioner was denied his constitutional right to communicate with the court regarding his appeal.

Petition for Writ of Habeas Corpus on grounds (a) and (c) was denied by the Supreme Court of California on November 6, 1963. Petition for Writ of Habeas Corpus on ground (b) above was denied by the Supreme Court of the State of California without opinion on September 18, 1964.

Defendant is presently imprisoned in California State Prison, California Men's Colony, in the County of San Luis Obispo, pursuant to commitment of the Superior Court of Sacramento dated September 26, 1944, for violation of California Penal Code Section 4502 possession of a knife by an inmate of a state prison and commitment of the same court dated August 29, 1947, for violation of Section 4500 of said Code assault by a life term prisoner.

Petitioner, acting in propria persona, appealed his conviction under Section 4502, and following said appeal, the conviction was affirmed by the California District Court of Appeals on March 19, 1945. See People v. Wells, 68 Cal.App. 2d 476, 156 P.2d 979. Motion to recall the remittitur and to augment the record, made in December, 1949, by petitioner was denied by the said District Court of Appeals.

The matter is now before this court on an Order to Show Cause, heard July 27, 1964, and September 28, 1964. On August 24, 1944, petitioner, at that time imprisoned in a state penitentiary, appeared before the Municipal Court in Sacramento, California, for a preliminary hearing regarding an alleged violation of Penal Code Section 4502 noted above. At this preliminary hearing petitioner was not represented by counsel, and it is this lack of counsel that petitioner asserts as grounds for the granting of the pending petition before this court.

At the said preliminary hearing the court advised the defendant he was entitled to the aid of counsel at all stages of the proceedings and the court would send for anyone he desired to appear as his counsel but that the court had no power to appoint counsel to represent him at the preliminary hearing. The petitioner asked for a delay to allow him to consult an attorney but stated he was not in a position to obtain an attorney. A petition to the California Supreme Court, docketed August 3, 1964, and decided September 18, 1964, as stated above, states at page 6 thereof:

"As an indigent felon, he was brought from the prison to the hearing."

Petitioner urges that Section 859 of the California Penal Code, enacted in 1957, which provides for appointment of counsel for indigent defendant at preliminary hearing, should be applied retroactively to petitioner's preliminary hearing in August, 1944, and that by failure to do so petitioner was denied his "constitutional rights to counsel."

Defendant was represented by the public defender at the trial of his case violation of Penal Code Section 4502 but did not have counsel on appeal though he requested same.

In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), strongly relied on by petitioner, the defendant did not have counsel at the time of his arraignment when he entered a plea of not guilty. The Alabama Supreme Court, while recognizing that he had a right under state law to be represented by counsel at arraignment, denied relief because there was no showing or effort to show that the defendant was "disadvantaged in any way by the absence of counsel when he interposed his plea of not guilty." Id. at p. 53, 82 S.Ct. at p. 158. The United States Supreme Court reversed the judgment of the Alabama court, saying:

"Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.

* * * * * *

"When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. * * * In this case, as in those, the degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently." Id. at pp. 54-55, 82 S.Ct. at pp. 158-159. Emphasis ours.

In the instant case we do not deal with an arraignment. The Hamilton case cannot be deemed controlling where there has been lack of counsel at a preliminary hearing without arraignment.

Petitioner also cites White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193 (1963). In this case, the defendant, without counsel, was brought before a magistrate for preliminary hearing on August 9, 1960, at which time he was arraigned and pleaded guilty. Subsequently, at what the Maryland court calls the "arraignment," on September 8, 1960, defendant entered pleas of "not guilty" and "not guilty by reason of insanity." At this proceeding he was represented by counsel. The plea of guilty made at the preliminary hearing was introduced into evidence at his trial. The Maryland court said that Hamilton v. Alabama, supra, did not apply since the preliminary hearing in Maryland was not the "critical stage in a criminal proceeding," as there is no requirement under Maryland law to appoint counsel at the preliminary hearing, nor was it necessary for the defendant to enter a plea at that time. The United States Supreme Court reversed the judgment of the Maryland court, stating:

"Whatever may be the normal function of the `preliminary hearing' under Maryland law, it was in this case as `critical' a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel.

"We repeat what we said in Hamilton v. Alabama, supra 368 U.S., at 55 82 S.Ct. 157 at 159, that we do not stop to determine whether prejudice resulted: `Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.' We therefore hold that Hamilton v. Alabama governs * *." Id. 373 U.S. at p. 60, 83 S.Ct. at p. 1051.

In the instant case, there was no plea of guilty entered, only the "normal function" of a preliminary hearing was carried out. Evidence was introduced to determine whether an offense was committed and whether there was probable cause to believe that the petitioner was guilty of the offense. "The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial." Jaffe v. Stone, 18 Cal.2d 146, 149-150, 114 P.2d 335, 338, 135 A.L.R. 775 (1941).

In United States ex rel. Cooper v. Reincke, 333 F.2d 608 (2nd Cir. 1964), the defendant appeared without counsel before the Trial Justice Court of the town of Essex, Connecticut, for a "hearing in probable cause (or, `bindover hearing')." At the hearing, defendant waived examination and pleaded not guilty to both counts of the complaint. He made no admission or confession "or in any other way acted so as to prejudice his case." Id. at p. 610. The Trial Justice Court found that probable cause existed and bound defendant over to the Superior Court for trial. The court in Reincke states:

"From Hamilton v. Alabama and White v. Maryland, it is plain that there is no arbitrary point in time at which the right to counsel attaches in pre-trial proceedings. Even in White, decided after Gideon Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the Court did not refer to counsel `at every stage.' Rather, the `critical' point is to be determined both from the nature of the proceedings and from that which actually occurs in each case. Our initial concern in the case at bar, therefore, is whether this Connecticut pretrial procedure was of such consequence that it was critical." Id., 333 F.2d at p. 611. Emphasis ours.

The court then finds that the Connecticut hearing on probable cause has been accurately characterized as a mere "`inquest' made to determine the existence of probable cause, and to discharge the accused if none exists," that the finding of probable cause is not final and cannot be used against an accused on trial, that the hearing on probable cause and appearance before a judge or committing magistrate can be readily dispensed with by the State since an original information may be filed in the Superior Court, and that no such hearing is provided where the State's attorney chooses in the first instance to obtain a bench warrant from the Superior Court. Id. at pp. 611-612. And, the court holds:

"The Connecticut hearing in probable cause cannot, therefore, be characterized as critical as is arraignment in Alabama. Indeed, it can hardly be termed a proceeding against the accused; to the contrary, it appears to operate entirely for the accused's benefit. And the mere fact that an accused is required to plead does not

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