Opinion
Philip P. Marskey, Sacramento, Court-Appointed Counsel, for petitioner.
Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Arnold O. Overoye, Deputy Attys. Gen., Sacramento, for respondent.
FRIEDMAN, Associate Justice.
Petitioner Wallace Dean Cline is confined in Folsom State Prison by force of two separate felony commitments, one issued in Santa Clara County in 1955, the other in Los Angeles County in 1962. He seeks habeas corpus, alleging constitutional vices in his 1962 Los Angeles conviction.
Since petitioner attacks only one of two unsatisfied commitments, the writ cannot accomplish his release The Nevertheless, if vulnerable to constitutional attack, the judgment may be reviewed in habeas corpus proceedings because it forms one of the conditions under which he is imprisoned. (See In re Ford, 66 A.C. 176, 57 Cal.Rptr. 129, 424 P.2d 681; In re Estrada, 63 Cal.2d 740, 750, 48 Cal.Rptr. 172, 408 P.2d 948.)
Petitioner's 1955 conviction in Santa Clara County was for the crime of first degree burglary. The 1955 judgment recites the existence of an earlier (1947) conviction of robbery in Monterey County. The maximum possible term for first degree burglary is life imprisonment, since Penal Code section 461 fixes punishment for that crime at not less than five years. (Pen.Code, see 671.)
Cline was on parole in Los Angeles County on March 1, 1962. That night a motorist in Glendora saw him with a weapon in his hand near a gas station and telephone booth. The motorist immediately informed two deputy sheriffs who were in a marked patrol car. The deputies drove to the service station. An employee was in the building
As a result of the March 1 affray, Cline was charged with assault with a deadly weapon upon a police officer. (Pen.Code, sec. 245(b).) He was also charged with and admitted two prior felony convictions, and 1955 conviction in Santa Clara County and the 1947 conviction in Monterey County. At his trial the accused took the stand in his own defense. He denied shooting at the officers. he said he had gone to La Puente the evening of the affray to find some work. He was trying to locate a certain man who had told him of available work. He did not have a gun or mask. He wore a trench coat. As he approached the scene of the crime he heard gunshots and, conscious of his criminal record, became concerned. He passed the driveway of the corner house, saw someone running and started to make a hasty retreat when he was wounded.
Following his claim of innocent involvement, Cline was cross-examined at length by prosecution counsel and impeached by the revelation of four prior felony convictions. The jury returned a verdict of guilt. As a result of petitioner's prior felony convictions, the court adjudged him an habitual criminal under Penal Code section 644(a) and imposed a sentence of life imprisonment on the assault charge.
In the Los Angeles proceeding, petitioner had also been charged and found guilty of possession of a sawed-off shotgun. (Pen.Code, sec. 12020.) In deference to the multiple punishment restriction of Penal Code section 654, the court imposed no sentence on that charge.
Petitioner appealed. His conviction was affirmed by the Second District Court of Appeal, Division Four, on November 22, 1963, and the State Supreme Court denied his application for hearing on February 19, 1964. (See People v. Cline, 222 Cal.App.2d 597, 35 Cal.Rptr. 420.) He commenced preparation of a petition for certiorari to be filed in the United States Supreme Court. On May 7, 1964, that court granted him an extension of time through July 18, 1964, but no petition was ever filed. Later he Principally, petitioner claims a violation of federally-secured constitutional rights through the trial court's error in admitting his extrajudicial statement procured by the deputy sheriff, who did not inform him of his rights to counsel and to silence. He relies upon Escobedo v. State of Illinois (1964), 376 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965), 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. The rule announced in those decisions is available as a means of collateral attack by one whose conviction was not final on June 22, 1964, the date of the Escobedo decision. (In re Shipp (1967), 66 A.C. 751, 59 Cal.Rptr. 97, 427 P.2d 761; People v. Rollins (1967), 65 A.C. 731, 735, 56 Cal.Rptr. 293, 423 P.2d 221; In re Spencer (1965), 63 Cal.2d 400, 404-405, 46 Cal.Rptr. 753, 406 P.2d 33.) Finality occurs when the time for filing a certiorari petition in the United States Supreme Court has elapsed. (In re Spencer, supra; People v. Ketchel (1966), 63 Cal.2d 859, 864, 48 Cal.Rptr. 614, 409 P.2d 694; People v. Polk (Oct. 20, 1965), 63 Cal.2d 443, 447-448, 47 Cal.Rptr. 1, 406 P.2d 641.) Because petitioner had secured a 60-day extension of time through July 18, 1964 within which to file his certiorari application, his judgment of conviction was not final on June 18, 1964. He may thus invoke the 1964-1965 Escobedo-Dorado rule as a means of collateral attack on his 1962 conviction. (In re Spencer, supra, 63 Cal.2d at pp. 405-406, 46 Cal.Rptr. 753, 406 P.2d 33; In re Tedwell (1967), 251 A.C.A. 374, 59 Cal.Rptr. 305.)
Rule 22, Rules of the United States Supreme Court, provides in part:
The California courts traditionally dispense habeas corpus relief on constitutional grounds when the applicant had no opportunity to raise the claim at the trial and on appeal. (In re Spencer, supra, 63 Cal.2d at p. 406, 46 Cal.Rptr. 753, 406 P.2d 33; People v. Ketchel, supra, 63 Cal.2d at p. 866, 48 Cal.Rptr. 614, 409 P.2d 694.) Petitioner was a prison inmate and not represented by counsel while he was preparing his certiorari application. His time for certiorari expired less than one month after the Escobedo decision and before the Dorado decision was handed down. He had no real opportunity to learn or assert the federal constitutional claim made here. He is properly before us on habeas corpus.
At the time of his hospital interrogation by the deputy sheriff petitioner was under arrest. He was subjected to a process of interrogation designed to elicit incriminatory statements and was not informed that he had rights to counsel and to remain silent. The record does not affirmatively show that he waived those rights. Consequently admission of his extrajudicial statement to the officer was federal constitutional error. (People v. Spencer (1967), 66 A.C. 151, 155-156, 57 Cal.Rptr. 163, 424 P.2d 715; People v. Dorado, supra, 62 Cal.2d at pp. 353-354, 42 Cal.Rptr. 169, 398 P.2d 361.)
Because petitioner was tried before June 13, 1966, the date of decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, the police procedures set forth in that case do not apply here. (People v. Rollins, supra, 65 A.C. 731, 56 Cal.Rptr. 293, 423 P.2d 221.)
Petitioner invokes the doctrine that erroneous admission of a confession violative of Escobedo-Dorado requirements is prejudicial error per se, requiring reversal without regard to independent evidence of guilt. People v. Price
People v. Schader People v. Stout People v. Tagle People v. Anderson People v. Green People v. BeverlyBrief as it was, Cline's extrajudicial concession was so incriminating that affirmance or reversal should not depend on its technical label as a confession or admission. As we interpret the most recent California Supreme Court decision on the subject, these verbal signals no longer evoke or repress the reviewing court's power to affirm when the error is harmless in the light of the record. The decision in question is In re Shipp, supra, 66 A.C. 751, 59 Cal.Rptr. 97, 427 P.2d 761, dated may 24, 1967. That case, like the present, was a habeas corpus attack upon a pre-Dorado felony conviction by one whose conviction had not become final on the date of Escobedo. As here, an extrajudicial statement within the Dorado proscription had been admitted in evidence. Arrested for murder committed in the course of a beating and robbery and without being warned of his rights, Shipp had made an extrajudicial statement to the police, admitting robbery and, to some extent, a physical assault upon the victim. Without any reference to the reversible error per se doctrine, the court proceeded to determine whether the error was prejudicial in the light of the record, employing the harmless error test recently articulated in Chapman v. State of California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. In substance Chapman holds that, except for those federal constitutional errors requiring automatic reversal, the reviewing court cannot affirm unless it believes that such an error was harmless beyond a reasonable doubt. Where applicable, Chapman permits a California reviewing court to adhere to its obligations under article VI, section 13, of the California Constitution, that is, by applying the Chapman test of harmlessness beyond a reasonable doubt when the error is of the federal constitutional variety and the California test of "reasonable probability" when the error is one of state law. (See People v. Charles (1967), 66 A.C. 325, 332, fn. 10, 57 Cal.Rptr. 745, 425 P.2d 545.) Applying the Chapman test, the Shipp decision concludes that on the record the accused's extrajudicial statement created prejudice.
The Shipp opinion (66 A.C. at p. 757, fn. 6, 59 Cal.Rptr. 97, 427 P.2d 761) observes that the extrajudicial statement may not have been a complete confession of felony-murder, but at least constituted a complete confession of the robbery and was not exclupatory.
Article VI, section 13, declares ion part: "No judgment shall be set aside, or new trial granted, in any cause, * * * unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
We pursue the rationale of the Shipp decision to determine whether the erroneous admission of petitioner's extrajudicial statement requires reversal of his conviction. We employ the Chapman test to determine whether the error was harmless beyond any reasonable doubt.
The measurement of prejudice does not stop with the recognition of adequate independent, incriminating evidence. The reviewing court cannot let affirmance rest solely upon the extrajudicial statement's minor effect upon the jury; must weigh its People v. Spencer,
Under similar circumstances the courts have sought to assess the defendant's motivations for taking the stand by balancing the relative incriminatory force of the inadmissible extrajudicial statement and of the independent evidence of guilt. (See In re Shipp, supra, 66 A.C. at pp. 756-757, 59 Cal.Rptr. 97, 427 P.2d 761; People v. Spencer, supra, 66 A.C. 160-162, 57 Cal.Rptr. 163, 424 P.2d 715.) An exculpatory extrajudicial statement is less likely, an incriminatory statement more likely, to induce the defendant to testify. The heavier the independent evidence of guilt, the greater is the likelihood that it--rather than the extrajudicial statement--induced the defendant's choice. Even where there is substantial independent evidence of guilt an extrajudicial confession is usually an "evidentiary bombshell," creating a "reasonable possibility" that it induced the courtroom testimony. ( People v. Spencer, supra, 66 A.C. at p. 162, 57 Cal.Rptr. 163, 424 P.2d 715.)
In this case both the extrajudicial statement (whether labeled as a confession or admission) and the independent evidence had heavily incriminatory quality. Perhaps the weight of the independent evidence would have moved Cline to take the witness stand regardless of his extrajudicial statement, perhaps not. The wellsprings of motivation are complex and obscure, and this reviewing court is in no position to deny a causal relationship between the incriminating statement and the defendant's courtroom testimony.
Thus we assume a "reasonable possibility" that the inadmissible extrajudicial statement played some motivating role in Cline's decision to testify. ( People v. Spencer, supra, 66 A.C. at p. 162, 57 Cal.Rptr. 163, 424 P.2d 715.) Viewed in relationship to the heavy independent evidence of guilt, his decision was harmless. Two law enforcement officers had been eye-witness-participants in the gun battle. Both described the affair from the witness stand. They had disclosed their identity to Cline and had fired a warning shot into the air when he commenced to run. He had responded by firing at both, hitting one. He had been wounded in the exchange of gunfire; the physical wounds of the accused and the officer were palpable facts. Both officers made courtroom identification, pointing to Cline as their assailant. One of the officers had him in continuous view throughout the chase and gun battle. The other's view was interrupted only briefly during the chase. There was no possible question of his identity as the man wounded in the gun battle. Three live shotgun shells were found in his pocket, one empty shell on the ground near him and another empty shell in the shotgun chamber. Ballistic tests showed that the empty shells were fired by Cline's shotgun. The guilt of the accused was unassailably demonstrated by incontestable proof, independently of the error-tinged evidence.
If the notion of impact upon the entire trial is meaningful, neither the extrajudicial statement nor the independent evidence can be weighed on the scale of incrimination without the other. Here, relative to the massive weight of independent proof, the extrajudicial incrimination was not an evidentiary bombshell but only a popgun. Neither Cline's inadmissible statement nor an adverse jury reaction to his courtroom Petitioner attacks his adjudication of habitual criminality. Penal Code section 644 requires service of a separate prison term for each prior conviction forming the basis of an adjudication of habitual criminality. The trial record is defective, being devoid of pleading or proof that Cline served separate terms on the 1947 Santa Clara County conviction and the 1955 Monterey County conviction. (People v. Collins (1964), 228 Cal.App.2d 460, 464-465, 39 Cal.Rptr. 595.) The defect may be reached on habeas corpus; the habeas court, however, will receive evidence to determine whether the defect exists in fact. (In re McVickers (1946), 29 Cal.2d 264, 269-274, 279-281, 176 P.2d 40.) Certified prison records demonstrate that petitioner served prison and parole time from August 1947 to February 1955, solely under the Santa Clara County commitment; from February 1955 to February 1960 was serving separate but concurrent sentences under both commitments; having been discharged from the Santa Clara County commitment in February 1960, served prison and parole time solely under the Monterey County commitment until his return to prison September 1962. Such being the facts, he actually served a separate term on each of his prior commitments. (See People v. Reed (1967), 249 A.C.A. 542, 57 Cal.Rptr. 407.)
Petitioner reiterates a claim rejected on his appeal--that the crime defined by Penal Code section 245, subdivision (b), is not one on which an adjudication of habitual criminality may rest. ( People v. Cline, supra, 222 Cal.App.2d at pp. 599-600, 35 Cal.Rptr. 597.) Assuming that we may properly do so, we see no reason to disturb that aspect of the case, since the contention was correctly rejected.
The petition for habeas corpus is denied and the order to show cause discharged.
PIERCE, P.J., and REGAN, J., concur.
"I asked him what his address was. He didn't answer me.
"I asked him if he had stolen the vehicle that was across the street from the gas station. He stated that he had not. I asked him who had stolen the car. He stated that another man had stolen the car. I asked him who this other man was; and he didn't answer me. I asked him if the other man was colored or white. He didn't answer me.
"I asked him who owned the shotgun. He stated the other man did. I asked him again who the other man was, and he didn't answer me.
"I asked him if he had shot at the deputies. He stated that he had. That was the substance of the conversation."
"1. A petition for writ of certiorari to review the judgment of a state court of last resort in a criminal case shall be deemed in time when it and the certified record required by Rule 21 are filed with the clerk within ninety days after the entry of such judgment. A justice of this court, for good cause shown, may extend the time for applying for a writ of certiorari in such cases for a period not exceeding sixty days."