Opinion
Paul Ackerman, Santa Ana, under appointment by the District Court of Appeal, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.
COUGHLIN, Justice.
The defendant was charged with the offenses of assault with intent to commit murder, i. e., a violation of § 217 of the Penal Code, and of assault with a deadly weapon upon a peace officer engaged in the performance of his duties, with knowledge of such After placement in the California State Prison at Folsom, the defendant, personally, prepared and filed with the trial court a petition for writ of error coram nobis. Simultaneously, he filed with that court a request for the appointment of an attorney to represent him in the presentation of his petition, on the ground that he was an indigent person. This request was denied. Subsequently, his petition came on for hearing, and it also was denied. The defendant has appealed from the latter order contending, among other things, that the trial court erred in refusing his request for the appointment of an attorney. He is represented on appeal by counsel serving under appointment by this court.
For the purpose at hand it is not necessary to relate the various contentions set forth in detail by the defendant in his petition as a basis for issuance of a writ of error coram nobis. Suffice to say that, from the allegations in the petition and evidence presented to the trial court, a bona fide contention could have been made by the defendant that, at the time of the commission of the offenses with which he was charged, he was not of sound mind; that he might have received a favorable verdict upon a trial of the issues raised by a plea of not guilty by reason of insanity; that his mental condition was of such a nature that he did not possess the specific mental state essential to the commission of the offenses in question; that, at the time of the entry of his plea of guilty, he did not know, through no fault of his own or with which he was chargeable, that his mental state at the time of the commission of those offenses was such as would constitute a defense; that at the time of entry of plea his mental condition was such as to render him incapable of understanding the effect of prior events upon his mental state when he committed the acts constituting the offenses with which he was charged; that the true condition respecting his state of mind at the time of said events became known to and appreciated by him after his placement in the state prison; and that he thereafter acted promptly in making his application to set aside the judgment under coram nobis proceedings.
By the foregoing observation it is not the intention of this court to pass upon the merits of the contention aforesaid, but merely to indicate that there is a basis for making such.
The petition was filed on August 1, 1963, although it was dated January 7, 1963 and had been presented for filing shortly after the latter date. The defendant's request for the appointment of an attorney was denied on the date of filing, i. e., on August 1, 1963. Thereafter, following the advice of a deputy public defender with whom he had been in correspondence, the defendant made another request for the appointment of an attorney. No action was taken upon the latter request. Affidavits in opposition to the petition and a memorandum of points and authorities were served by mail on the defendant at Folsom prison. The hearing was continued from time to time until October 25, 1963. The minutes of the court indicate that on this date the defendant was not in court and not represented by counsel; the People were represented by a deputy district attorney; and the petition for coram nobis was denied. The trial judge complimented the deputy district attorney on his presentation of points and authorities, stating that they were 'excellent.' No argument was presented on behalf of the defendant except '[I]t is fairly obvious that SHIPMAN, [the defendant] for a period of about five months, and up until the time that he was placed in jail, was suffering from a toxic psychosis due to massive overdoses of Benzedrine, and that this toxic state existed prior to and during the acts for which he is presently incarcerated. * * * Lastly, as relates to the specific incident for which he was convicted, that is, the assault on police offer on January 29, 1962, it is my opinion that he was suffering from an hypnotic psychosis, acute, of long standing, and, secondary, to the over-injections of massive amounts of Benzedrine. This state, undoubtedly, accounted for his confusion at the time of his apprehension; and the delusional state, along with his hallucinations and delusions, has raised a question as to S's clarity of intellect sufficiently to allow him to comprehend what he was doing, and to be aware that what he was doing was wrong. * * * I am not saying that this is the case, I am merely saying that there is sufficient evidence that the question may be legitimately raised.'
The psychiatrist also was of the opinion that at the time of the trial the defendant was mentally able to cooperate in his own defense. On the other hand, at the time of the examination, which was several months after the trial, there was some question respecting the defendant's ability to remember.
A petition for a writ of error coram nobis is the equivalent of a motion to vacate a judgment; is regarded as part of the proceedings in the case to which it refers; and its availability 'to enable a convicted person, * * * to establish that in truth the judgment was procured under circumstances which offend 'the fundamental conceptions of justice which lie at the base of our civil and political institutions' has been recognized as constituting a part of Clause of the Fourteenth Amendment.' Clause of the Fourteeth Amendment.' (People v. Shorts, 32 Cal.2d 502, 506, 197 P.2d 330, 332.) In a criminal case, the right to appeal from an order granting or denying such a petition is governed by the provisions of the Penal Code; and upon such an appeal the right of the defendant to a record, 'insofar as the payment of costs is concerned, is the same as upon any other appeal allowed by law to a defendant in a criminal case.' (In re Paiva, 31 Cal.2d 503, 510, 190 P.2d 604, 609.) Thus, in California an indigent defendant appealing from an order denying his petition for a writ of error coram nobis, by statute, is given the right to a transcript on appeal without cost. (In re Paiva, supra, 31 Cal.2d 503, 510, 190 P.2d 604.) In addition, he is guaranteed this right by the equal protection of the law clause of the Federal Constitution. (Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892.) This constitutional provision, as interpreted by the Supreme Court of the United States, affords an indigent defendant in a criminal proceeding the same opportunity for review of a judgment against him as may be obtained by a non-indigent. (Lane v. Brown, supra, 372 U.S. 477, 483, 83 S.Ct. 768, 772; Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891.) These principles afford such a defendant not only the right to a transcript on appeal, but also the right to assistance of counsel on appeal. (Douglas v. People of State of California, 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811.) The basis for this determination, as stated by the Supreme Court of the United States, is that: 'In either case the evil is the same: discrimination against the indigent.' (Douglas v. People of State of California, supra, 372 U.S. 353, 355, 83 S.Ct. 814, 816.) The rules thus resolved are not 'limited to direct appeals from criminal convictions, but extend alike The fact that a deputy public defender gave the defendant some assistance in the presentation of his petition was not a substitute for compliance with the request for counsel. The deputy public defender in question indicated to defendant, because the latter in his petition had questioned the adequacy of the representation received by him at the time of trial, that he should make a request for the appointment of a private attorney. In response to this suggestion the defendant made the request heretofore noted which was not acted upon. To comply with the constitutional guarantee an indigent defendant is entitled to representation by an attorney in the role of an advocate. Representation in the role of amicus curiae, as clerk, or as an investigator, does not comply with the constitutional requirement. (Douglas v. People of State of California, supra, 372 U.S. 355, 357, 83 S.Ct. 814, 816; Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060.)
In support of the order denying the defendant's request for an attorney, the attorney general cites the decision in People v. Fowler, 175 Cal.App.2d 808, 346 P.2d 792. The interpretation placed upon the equal protection of the law clause by the Supreme Court of the United States, since the decision in the cited case, has changed the complexion of the law with respect to the right of an indigent defendant to the assistance of legal counsel from that existent at the time of that decision. For this reason, we do not believe the rule relied upon and applied in that case is now the law of California.
The order appealed from is reversed with instructions to the trial court to set aside said order; appoint legal counsel to represent the defendant in the instant coram nobis proceeding; and thereupon proceed in the manner prescribed by law.
GRIFFIN, P. J., and McCABE, J., concur.
Assigned by Chairman of Judicial Council.
Hearing granted; MOSK, J., not participating.