Williams, In re

• Decision Date: 14 November 1969
• Docket Number: Cr. 11954
• Citation: 460 P.2d 984,81 Cal.Rptr. 784,1 Cal.3d 168
• Parties: , 460 P.2d 984 In re Howard Kenneth WILLIAMS, Jr., on Habeas Corpus.
• Court: California Supreme Court

Page 784

81 Cal.Rptr. 784

1 Cal.3d 168, 460 P.2d 984

In re Howard Kenneth WILLIAMS, Jr., on Habeas Corpus.

Cr. 11954.

Supreme Court of California In Bank.

Nov. 14, 1969.

Howard Kenneth Williams, in pro per., and Robert N. Beechinor, San Francisco, under appointment by the Supreme court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and James T. McNally, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

On November 7, 1966, petitioner, Howard K. Williams, pleaded guilty to forgery (Pen.Code, § 470) before the committing magistrate. The magistrate certified the case to the superior court. On December 7, 1966, that court denied petitioner's motion to withdraw his guilty plea and sentenced him to the state prison for the term prescribed by law, one to fourteen years. (Pen.Code, § 473.) Petitioner did not file a timely notice of appeal from the judgment. He sought a belated appeal; on February 14, 1967, the superior court found there was no cause for appeal. (Pen.Code, § 1237.5.) This court denied two previous petitions for habeas corpus on grounds unrelated to the present petition on September 26, 1967, and December 20, 1967.

On February 16, 1968, petitioner filed a petition for writ of habeas corpus seeking reversal of the judgment on the ground that the People lacked the power to prosecute him for forgery under section 470 of the Penal Code because the acts he was alleged to have committed constituted a violation of former section 484a of the Penal Code, which proscribed conduct involving the misuse of credit cards. (See People v. Ali (1967) 66 Cal.2d 277, 279--281, 57 Cal.Rptr. 348, 424 P.2d 932; People v. Swann (1963) 213 Cal.App.2d 447, 449, 28 Cal.Rptr. 830; see also In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593.) We issued an order to show cause. After the return was filed, we appointed a referee to take evidence and make findings to determine whether the public defender who represented petitioner at the time of the guilty plea investigated the facts and the law under People v. Swann, supra, 213 Cal.App.2d 447, 28 Cal.Rptr. 830, and discussed with the petitioner a defense based on Swann.

We have concluded that the writ should be issued, the remittitur recalled, the judgment of conviction reversed, the petitioner be permitted to withdraw his guilty plea, and the cause remanded for further proceedings. The public defender did not provide the petitioner with effective assistance of counsel in that he did not research the facts and the law under People v. Swann, supra, 213 Cal.App.2d 447, 28 Cal.Rptr. 830, and did not discuss a defense to the forgery charge based on Swann, but permitted the petitioner to plead guilty to a crime which he did not commit. (People v. Ibarra (1963) 60 Cal.2d 460, 466, 34 Cal.Rptr. 863, 386 P.2d 487; see In re Hawley (1967) 67 Cal.2d 824, 828, 63 Cal.Rptr. 831, 433 P.2d 919.)

We may summarize the evidence introduced at the hearing and the referee's findings as follows:

On October 30, 1966, petitioner attempted to purchase two airline tickets from Los Angeles to Texas which were worth $152.26. To obtain them he presented to the clerk at the American Airlines ticket counter at the Los Angeles airport a Carte Blanche credit card in the name of Norman Dolin, together with Norman Dolin's driver's license. Petitioner signed Norman Dolin's name on the credit card voucher. While petitioner waited, the airline clerk checked the status of the credit card and discovered that it belonged to an attorney from Beverly Hills who had reported it lost on October 23, 1966.

The clerk called the police, detaining petitioner by saying that the check on the credit card had not been completed. Two Los Angeles police officers arrived. Informing the officers of the card's status, the clerk gave them the voucher signed by petitioner. The officers then placed petitioner under arrest, giving him the required constitutional warnings. According to the police report, petitioner asserted that he owned the credit card and that his name was Norman Dolin. Petitioner, however, testified at the evidentiary hearing that he told the police officers that Norman Dolin, an associate of his, had given him the credit card to purchase the airline tickets. Petitioner argued that if the card was not properly in his possession, he would not have remained so long at the airline ticket counter while the clerk checked the card.

Upon leaving the airport terminal, petitioner took the officers to a 1966 Cadillac sedan parked outside. Although the police report indicates that petitioner told the officers that he had leased the automobile from Hertz with a cash deposit, petitioner testified at the hearing that his associate had leased the car. The officers called the Hertz office at the airport and discovered that the car had been leased with the Carte Blanche card of Norman Dolin and that the lessee was expected to return the car on October 31, 1966.

On November 1, petitioner appeared in the Municipal Court of the Inglewood Judicial District, Los Angeles County, for arraignment. The District Attorney of Los Angeles County charged petitioner with three offenses: (1) forgery in violation of section 470 of the Penal Code of 'a certain credit voucher and order in writing for the payment of money in the sum of * * * $152.26 * * *'; (2) forgery in violation of section 470 of the Penal Code of 'a certain rental agreement (for the Hertz automobile) and order in writing for the payment of money in the sum of * * * $18.00 * * *'; (3) violation of section 484a, subdivision (b)(5), of the Penal Code for forging, materially altering and counterfeiting a credit card.

On the day of the preliminary hearing, the deputy public defender visited petitioner in jail and discussed the case. Petitioner remembers that he told the deputy public defendant that Norman Dolin had given him the credit card to purchase airline tickets, and that he denied having forged the credit card voucher. The deputy public defender, who is now in private practice, testified that although he does not retain an independent recollection of the facts of this case, he probably followed his normal procedure of reading only the police report before interviewing the accused person. The police report indicated that petitioner had claimed to be Norman Dolin at the time of arrest, that petitioner was not Norman Dolin, and that petitioner had attempted to misuse the credit card in purchasing airline tickets.

The deputy did not discuss any defense to the charges, according to petitioner, but inquired whether he would plead guilty to count I of the information, which charged forgery, if the other two counts were dropped and petitioner were sent to county jail for six months. When petitioner agreed to this arrangement the deputy left to discuss the case with one of the attorneys in the district attorney's office. Upon the deputy's return, he repeated to petitioner the terms of the agreement to which petitioner had previously assented.

At the preliminary hearing petitioner appeared with the same deputy public defender and pleaded guilty to count I; the deputy district attorney moved to dismiss the charges in counts II and III. The court dismissed charges on these two counts and bound petitioner over for sentencing by the superior court. When petitioner appeared in the superior court he found that another deputy public defender was present in court to represent him; this attorney knew nothing of the above agreement. Thereupon petitioner personally requested permission to withdraw his plea but the court denied the motion as untimely. The court sentenced petitioner to prison for the term prescribed by law, one to fourteen years.

At the time of the commission of the crime the state could not have prosecuted petitioner for forgery under section 470 of the Penal Code because the charged offense constituted a violation of former section 484a ¹ of the Penal Code proscribing misuse of credit cards. In People v. Swann, supra, 213 Cal.App.2d 447, 449, 28 Cal.Rptr. 830, 831, the Court of Appeal for the Second District held that the state did 'not have the power to prosecute under the general felony statute (Pen.Code, § 470, forgery) in a case such as this where the facts of the alleged offense parallel the acts proscribed by a specific statute (Pen.Code, § 484a, subd. (b)(6)).' In support of this conclusion, the court cited In re Williamson, supra, 43 Cal.2d 651, 654, 276 P.2d 593, 594, in which we held: 'where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.' We denied the state's petition for hearing in the Swann case and approved Swann's rationale in People v. Ali (1967) 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932. (See People v. Scott (1968) 259 Cal.App.2d 589, 66 Cal.Rptr. 432; People v. Churchill (1967) 255 Cal.App.2d 448, 63 Cal.Rptr. 312.) ² Thus petitioner pleaded guilty, suffered conviction, and went to prison for the crime of forgery which he did not commit.

Although petitioner talked with the deputy public defender and pleaded guilty almost four years after the Court of Appeal's decision in Swann, the deputy did not know of the case. In fact, the deputy testified that he had only become aware of Swann about a month prior to the hearing before the referee in 1968. Although he apparently knew of the general proposition that specical legislation takes precedence over general legislation, no evidence indicated that he applied that concept to this case and the Swann defense. At the reference hearing the deputy defended his actions in retrospect by saying that the Swann type defense would not be relevant to a plea bargain situation such as that presented by petitioner's case. ³ The district attorney had charged petitioner...