Wilson v. Harris

• Decision Date: 19 October 1965
• Docket Number: No. 19937.,19937.
• Citation: 351 F.2d 840
• Parties: Lawrence E. WILSON, Warden, San Quentin Prison, Appellant, v. Fred R. HARRIS, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.2d 840 (1965)

Lawrence E. WILSON, Warden, San Quentin Prison, Appellant, v. Fred R. HARRIS, Appellee.

No. 19937.

United States Court of Appeals Ninth Circuit.

October 19, 1965.

Thomas C. Lynch, Atty. Gen. of Cal., Albert W. Harris, Jr., Deputy Atty. Gen., Michael R. Marron, Deputy Atty. Gen., San Francisco, Cal., for appellant.

N. Rommel Bondoc, San Francisco, Cal., for appellee.

Before HAMLEY, JERTBERG and MERRILL, Circuit Judges.

JERTBERG, Circuit Judge:

Appellee is in state custody serving a prison sentence imposed on April 23, 1954 by the Superior Court of the State of California in and for the County of Santa Clara, following his plea of guilty to a charge of armed robbery in violation of Section 211 of the Penal Code of the State of California, and also charging a prior felony conviction in the State of New Mexico for issuing bad checks.

Appellee did not appeal to the reviewing courts of California from the judgment of conviction but did file petitions for writs of habeas corpus in the Superior Court for the County of Marin, the District Court of Appeal for the State of California, First Appellate District, and the Supreme Court of California, and the United States District Court for the Northern District of California, Southern Division, all of which petitions were denied. Appellee's petition for writ of certiorari to the United States Supreme Court was likewise denied.

On October 16, 1964, appellee filed an application for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division. The District Court appointed counsel to represent appellee in the proceedings, and issued an order to the appellant to show cause why the petition should not be granted. A return to the order to show cause was filed and appellee filed a traverse to the return. Following argument and submission, the District Court issued a writ of habeas corpus and ordered that appellee be discharged from the custody of the State of California. No evidentiary hearing was held by the District Court. The District Court concluded from the pleadings and exhibits before it that petitioner was entitled to discharge on two independent grounds. First, because it decided petitioner had been denied his constitutional right to counsel at arraignment in the Superior Court; second, because it held that petitioner had been denied his right to counsel at the preliminary examination.

Before us is the appeal of the State of California from such order. On this appeal the State contends that the District Court erred in holding:

(a) That appellee did not competently waive counsel at the time of his arraignment in the Superior Court;

(b) That appellee was deprived of his constitutional right to counsel at appellee\'s preliminary examination; and

(c) In issuing the writ of habeas corpus and ordering appellee\'s discharge without an evidentiary hearing.

We have carefully examined the entire record which was before the District Court. The record reveals that appellee was thirty years of age at the time of his arrest, and literate; that he had suffered a prior felony conviction for which he served a term in the New Mexico State Prison; that at the time of his arraignment on April 4, 1954, on the warrant of arrest, he was informed of his right to counsel at which time the preliminary examination was set for April 12, 1954; that at the time of the preliminary examination appellee voluntarily expressed an intention to plead guilty, and on that occasion was again informed of his right to counsel; that prior to the entry of the guilty plea in the Superior Court on April 15, 1954, appellee was informed of his rights "to a speedy public trial by an impartial jury, to be represented by an attorney at all stages of the case, to have a reasonable bail fixed for you, to be confronted by witnesses against you, to have the aid of the court to compel the attendance of any witnesses you may have."; that prior to the plea the court inquired of defendant (appellee) if he had an attorney, to which the defendant replied:

"No sir, I would like to plead guilty, waive probation, get sentenced as soon as I can.";

that following further colloquy between the Court and the appellee, the Court inquired of him if he wanted to plead guilty to the charge of armed robbery, to which appellee replied: "Yes sir, if I can get my time as soon as I can."

The key issue which the District Court was called upon to determine under appellant's first assignment of error is whether appellee competently and intelligently waived his right to counsel at the time of his arraignment in the Superior Court. It appears clear to us from the record that the entry of the guilty plea by the appellee was a completely voluntary act on his part. His decision to plead guilty was not hastily or impulsively contrived. The plea was entered after he had been informed of his right to counsel both at the time of his arraignment and at the time of the preliminary examination, at which time he voluntarily expressed his intention to plead guilty. He was literate, and was not entirely inexperienced in criminal proceedings since he had previously been convicted of a felony and had served a term in a state prison. In the light of the foregoing circumstances we believe that the District Court erred in determining from the cold record which was before it that appellee did not competently and intelligently waive his right to counsel but should have left that issue for decision following an evidentiary hearing.

28 U.S.C. § 2243 in pertinent part provides:

"Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.

* * * * * *

"The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require."

Recently this court stated:

"Only if it appears from undisputed facts disclosed by the petition, the response to the order, and the answer, if any, that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided." Wright v. Dickson, 336 F.2d 878 at 881 (9th Cir. 1964).

As stated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938):

"The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

Perhaps there may be available at an evidentiary hearing the magistrate who presided at the preliminary hearing, the judge who presided at the arraignment and sentencing, and court attachés, all of whom had the opportunity to observe the appearance and demeanor of the appellee, and might be in position to furnish cogent assistance to the District Court in determining whether appellee intelligently and competently waived his right to counsel before the entry of his voluntary plea.

We find no merit in appellee's contentions that appellant's failure to allege in its return facts dehors the record, or to request an evidentiary hearing, relieved the District Judge of his duty "to hear and determine the facts and dispose of the matter as law and justice require."

Appellant's second assignment of error requires an examination into the nature, purposes and effect of a preliminary examination under California law. Under California law a preliminary examination serves as an alternative to proceeding by way of grand jury hearing. Either proceeding may result in the issuance of an accusatory pleading, either information or grand jury indictment. §§ 806, 889, 949, 951, Penal Code of the State of California. A preliminary examination is ordered by a magistrate pursuant to a written complaint charging a public offense being filed in his court. §§ 859, 860 Penal Code of the State of California. The purpose of a preliminary examination is not to determine the guilt of the defendant but rather, it 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, 114 P.2d 335, 135 A.L.R. 775 (1941); People v. Elliot, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225 (1960).

An accused is entitled to be represented by counsel at his preliminary examination. § 859 Penal Code of the State of California.

An accused unrepresented by counsel at his preliminary examination cannot plead guilty at the time of such examination. Art. I, § 8 Constitution of the State of California; § 860 Penal Code of the State of California.

Witnesses must be examined in the presence of the defendant and may be cross-examined in his behalf. § 865 Penal Code of the State of California. When the examination of witnesses on the part of the people is closed, any witnesses the defendant may produce must be sworn and examined. § 866 Penal Code of the State of California.

A defendant may not be examined at the preliminary examination unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel. § 866.5 Penal Code of the State of California.

If it appears from the examination that the offense charged has been committed and there is probable cause to believe the accused guilty thereof, the magistrate orders the accused held for trial in the Superior Court; otherwise, he is discharged. §§ 871, 872, 876, 877 Penal Code of the State of California. A discharge does not constitute an acquittal for the State can proceed anew against the defendant although an initial attempt has been unsuccessful in establishing probable cause. § 999 Penal Code of the State of California; People v. Joseph, 153 Cal.App.2d 548, 314 P.2d 1004 (1957).

If the accused is held to answer an information is...