Wilson v. Blabon

• Decision Date: 20 February 1967
• Docket Number: No. 20976.,20976.
• Parties: Lawrence E. WILSON, Warden California State Prison, San Quentin, Appellant, v. Donald Lee BLABON, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 997 (1967)

Lawrence E. WILSON, Warden California State Prison, San Quentin, Appellant, v. Donald Lee BLABON, Appellee.

No. 20976.

United States Court of Appeals Ninth Circuit.

January 6, 1967.

Rehearing Denied February 20, 1967.

Thomas C. Lynch, Atty. Gen., of Cal., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellant.

Ralph C. Walker, San Francisco, Cal., for appellee.

Before HAMLEY and ELY, Circuit Judges, and MATHES, District Judge.

MATHES, District Judge:

The Warden of the California State Prison at San Quentin appeals from a judgment of the District Court granting appellee's petition for a Writ of Habeas Corpus and ordering him discharged from custody, subject to the condition that custody be retained until termination of any appeal, or until expiration of appellant's time to appeal.

In language of single plain meaning, the Congress has declared that:

"The Federal writ of habeas corpus shall not extend to a prisoner unless — * * * He is in custody in violation of the Constitution or laws or treaties of the United States * *." 28 U.S.C. § 2241(c) (3).

The District Court granted appellee's petition for the Writ, upon the ground that appellee's criminal conviction in the Justice Court of the State was in violation of his Federal Constitutional right to the assistance of counsel, although appellee's present confinement is solely by virtue of a 1961 commitment from the State Superior Court made pursuant to proceedings under § 5501(a) of the California Welfare and Institutions Code, which then provided in pertinent part that:

"When a person is convicted of any criminal offense * * * the trial judge * * * if it appears * * * that there is probable cause for believing such person is a sexual psychopath within the meaning of this * * statute, may adjourn the proceeding * * * and * * * certify the person for hearing and examination by the superior court * * * to determine whether the person is a sexual psychopath * * *." See Calif. Welfare and Institutions Code, § 5500 et seq.

The admitted facts of the case are these. On November 7, 1960, a criminal complaint was filed in the Justice Court of the Corning Judicial District of California, charging appellee with indecent exposure, a misdemeanor, in violation of § 311, subd. 1 of California's Penal Code. Appellee was arraigned on the same day, and the minutes of the Justice Court state:

"Complaint filed. Defendant in Court, was arraigned, informed of right to counsel, waived counsel, entered a plea of not guilty and requested jury trial."

In due course, appellee appeared before a jury, conducted the trial as his own defense counsel, and was convicted of the charge. Subsequent to the conviction, but prior to the imposition of sentence, the criminal proceedings in the Justice Court were ordered suspended pursuant to the quoted provisions of § 5501(a); and then "on the Justice Court's own motion, the proceedings were certified to the Superior Court of Tehama County for hearing and examination to determine if he is a sexual psychopath, and he was ordered to appear before the Superior Court forthwith."

The proceedings that ensued in the Superior Court were entitled "The People of the State of California, for the best interest and protection of Donald Lee Blabon, an alleged sexual psychopath." Throughout these proceedings, appellee was represented by an attorney. The "Order and Writ of Commitment", by virtue of which appellee is now confined, declares that the Superior Court first ordered him committed to the Atascadero State Hospital, and that the State Hospital thereafter reported to the Superior Court "that Donald Lee Blabon was a sexual psychopath who would not benefit by care or treatment by the State Hospital and was a menace to the health and safety of others." See Calif. Welfare and Institutions Code § 5512.

On May 2, 1961, following a jury trial, the jury returned a verdict finding appellee to be a "sexual psychopath", as charged. The Superior Court thereupon committed appellee to the custody of the Director of the California Department of Mental Hygiene for an indeterminate period. See id. §§ 5512.5, 5518.

It is undisputed that appellee is a "sexual psychopath", as defined in the California statute. See id. § 5500. Nor does appellee dispute that the Superior Court proceedings leading to the commitment, as well as the commitment by virtue of which appellee is now held in custody, are free of error. Indeed, appellee's only challenge here is as to the validity of the criminal conviction in the Justice Court.

There was no motion for a new trial, or appeal from the 1960 misdemeanor conviction in the Corning Justice Court; nor was there an appeal from the 1961 commitment in the Tehama County Superior Court. See: Thurmond v. Superior Court, 49 Cal.2d 17, 314 P.2d 6 (1957); People v. Haxby, 204 Cal.App. 2d 791, 22 Cal.Rptr. 803 (1962); People v. Bales, 180 Cal.App.2d 16, 4 Cal.Rptr. 205 (1960).

In 1965, some four years after his commitment, appellee petitioned the California Supreme Court for a Writ of Habeas Corpus see Calif.Const. Art. VI, Sec. 4 and, although the record of the proceedings there has not been brought to us, it is undisputed here that this petition was denied without opinion or comment. It is likewise undisputed that shortly thereafter appellee's petition to the Tehama County Superior Court for the Writ was also denied. Cf. Calif. Const. Art. VI, Sec. 5.

On September 1, 1965, appellee filed his petition in the District Court for the Federal Writ, alleging that he had then exhausted all remedies available to him in the State courts. Counsel was appointed to represent him and, in due course, the District Court held an evidentiary hearing, at which appellee appeared with his attorney and testified in support of his petition. The presiding Justice of the Justice Court for the Corning Judicial District, Judge Hultgren, also testified at the hearing. The District Court found that appellee had been informed in the Justice Court of a "right to counsel", but had not been informed of his right to have court-appointed counsel, if financially unable to retain counsel.

Upon ordering the Writ of Habeas Corpus to issue, the District Court observed:

"Judge Hultgren\'s own testimony establishes that the petitioner was not informed of his right to appointed counsel. This failure to fully inform petitioner of his constitutional rights under the sixth and fourteenth amendments clearly fails to satisfy the standards enunciated in Gideon v. Wainwright, 372 U.S. 335 83 S.Ct. 792, 9 L.Ed.2d 799. Nor can it be said that petitioner effectively waived the assistance of counsel. The teachings of Johnson v. Zerbst, 304 U.S. 458 58 S.Ct. 1019, 82 L.Ed. 1461, establish that a constitutionally effective waiver can only be based upon an intentional abandonment or relinquishment of a known right."

Appellant contended in the District Court that the standards set forth in Gideon v. Wainwright, supra, 372 U.S. 335, 342, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), are not applicable to appellee's case, since failure to provide assistance of counsel occurred in a criminal proceeding involving only a misdemeanor. On this appeal, however, appellant has not raised the issue whether the rule pronounced in Gideon governs a State misdemeanor case; but here we shall assume, without deciding this Federal Constitutional question, that both reason and policy require that it does. See: DeJoseph v. Connecticut, 385 U.S. ___, 87 S.Ct. 526, 17 L.Ed.2d 443 (December 5, 1966); Patterson v. Warden, Maryland Penitentiary, 227 Md. 194, 175 A.2d 746 (1961), remanded 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137, rev'd 231 Md. 509, 191 A.2d 237 (1963); McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965); Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir. 1965); Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633 (1942); Comment, The Indigent Defendant's Right to Counsel in Misdemeanor Cases, 19 Sw.L.J. 593 (1965); cf. Criminal Justice Act of 1964, 18 U.S.C. § 3006A(b).

Our view of the case at bar also permits us to avoid the necessity of deciding the question whether applicable California law affords the remedy of direct attack through coram nobis, but forbids collateral attack through habeas corpus, upon the validity of appellee's criminal conviction in the Justice Court, bearing in mind that he is presently confined pursuant to the Superior Court proceeding. See: Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953); People v. Adamson, 34 Cal.2d 320, 210 P.2d 13 (1949); People v. Sorenson, 111 Cal.App.2d 404, 244 P. 2d 734 (1952); cf.: United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.), cert. denied 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964); United States ex rel. Savani v. Jackson, 250 F.2d 349 (2d Cir. 1957).

We also lay to one side the question whether appellee has exhausted the remedies presently available to him in the State courts see: 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963); cf. Conway v. Wilson, Warden et al., 368 F.2d 485 (9th Cir., October 28, 1966), although it does not appear that appellee has as yet petitioned either the District Court of Appeal of the District wherein he is confined see Calif. Const. Art. VI, Sec. 4b, or the Superior Court of Marin County where he is held in custody see id., Art. VI, Sec. 5, for the Writ.

Nor is it clear that appellee has exhausted State remedies presently available for challenging the validity of his criminal conviction in the Justice Court, such as by motion for a new trial and appeal from a denial thereof, assuming of course that successful outcome of such procedure would result in his release from custody under California law. See: Calif. Penal Code § 1466(2) (c); Thurmond v. Superior Court, supra, 49 Cal.2d 17, 314 P.2d 6; see also: Calif....