Lawrence E. Wilson, Warden San Quentin State Prison v. Glenn Rose

scription representation sexual Quen- WILSON, Lawrence Warden San E. utterly matters; (c) is the material Appellant, Prison, tin State redeeming social value.” without no (Definitions) makes Section 46A-1 Appellee. ROSE, Glenn given any provision application for No. 20250. guides morality to be standards employed Appeals in mak- States used board ing Circuit. impressions Ninth as its and determinations particular for Sept. to the fitness of the film Thus, exhibition. without instruc- subject

tions on the of First Amendment rights, among this board set adrift

myriad purpose of shoals for the laudible

protecting young people its shows from should not and hear see Yet,

their best no interest. there are

procedural safeguards in or- this Dallas safeguard protect

dinance to

vouchsafe to the exhibitor First their rights.

Amendment We are told enforcing

Dallas is even now ordin- this

ance written.

Finally, provides: 2 of this ordinance § any person

“That who shall violate

provisions (sic) be of this ordinance shall misdemeanor”

viction shall fined hundred dol- two safely

lars each It offense. average person

doubted that could exactly that which

scribed this ordinance to crimi- avoid punishment. cap-

nal While 46A-4 § “Offenses,”

tioned all this section

comprehensive of that to be which seems

prohibited by provision. It this criminal

may be well doubted that ordinance this conveys sufficiently

thus warn- definite proscribed as to the criminal conduct

to define a criminal valid offense.

seems follow as matter of course surely ordinance is vulnerable to

Vagueness presently applied. Doctrine as impinges upon protected picture

motion the First exhibitors under implemented by

Amendment Four-

teenth Amendment to the Constitution

the United States. reluctance, respectfully dissent

With

for the reasons indicated. court denied relief after an State evidentiary hearing. re Cal.Rptr. 398 P.2d

Cal.2d charges against The State’s criminal appellee single arose incident out involving appellee’s “girlfriend.” The offenses; alleged kidnapping State three (Calif. 207), assault Penal Code § likely great produce means to of force bodily injury (§ 245), copulation and oral (§ 288a), carrying penalties of maximum twenty-five years, years, and fifteen ten years, respectively. statutes State vide to is not available involving persons convicted of an offense bodily injury great wilful infliction of (§ 1203), person nor convicted of to copulation force, duress, oral where Cal., Atty. Lynch, Gen. of Thomas C. great bodily threat harm involved Phelan, Granucci, J. Michael Robt. R. (§ 288a). Cal., Francisco, Attys. Gen., Deputy San appellant. for Appellee plead and a trial date his was set. When case was called Cal., Francisco, Densmore, Lin San B. appellee trial, prior for withdrew appellee. pleas plead guilty to the section 207 CHAMBERS, KOELSCH Before charges. and section 245 The State dis- BROWNING, Judges. Circuit charge. missed the section 288a The

State court denied and sen- Judge, provided by an- BROWNING, tenced Circuit the terms in an sections im- of the terms nounced prisonment concurrently. his individual forth to run which sets views; attorney retained Quentin represent Peniten- him time of San to and at the The Warden plea, dis- tiary appellee’s of the appeals an from order testified on behalf appellee’s corpus hearing. setting State aside State habeas trict court attorney ob- ground stipulated “testi- on the conviction truthfully, Process Due fied of the best recollec- tained in violation testimony Amendment. tion and belief.” Fourteenth His Clause contradicted. affirm. We corpus Appellee’s petition attorney habeas Appellee's retained testified challenged appellee plead conviction concluded that have effective ground did not to the sections 207 that he charge he entered when section 288a dis would be sistance placed missed and guilty plea, did not would be on probation, appel or the and that he so advised nature of testified, “My lee. As he plea. Rose v. statement 1964) get de- probation,”; him affirmed was that he we raising indeed, attorney petition testified, “guar an earlier nial of Appellee expressed had been anteed” it. because wish issues same Ap- employ attorney courts. and consult presented the California another making petition decision; in the State before filed a but his re pellee then issues, raising these tained counsel specifically advised him not to do so court going get probat Appellee’s the case “he at all. because attorney ap listened to ion.”1 that he pellee’s story complaining and to wit ap- Appellee’s attorney tell did not testimony preliminary ness’ at the exam pellee that it was (which appellee ination told him was not might granted, and that not be true), investigate but made no effort might imprisonment; result of either the factual circumstances testified, me.” “It never occurred to he applicable law; case or the he inter probation appellee He did not tell that witnesses; viewed no did not examine he prohibited where the statute police complaining reports, or the great infliction of offense involved wilful prior police. witness’ statements to harm; bodily he he that testified provision. not not aware of this He did The district court the evi- summarized appellee seriousness of the advise dence as follows: charges against appellee appellee or tell * * * “Throughout period all this might be; possible what the sentence counsel for the in accused failed not read the stat- testified that he had real sense to advise and consult with utes, punishment and did not know what accused; possible failed to discuss they provided. defenses or the facts of the case with attorney accused; pursue any that he be told his failed to dis- covery available; lieved himself innocent of the devices in- failed to against him, vestigate informed his twice the case or interview wit- guilty. nesses; of desire to not counsel failed to advise the ac- Nevertheless, appellee’s attorney consequences did not cused of the nature and appellee; guilty plea.3 only discuss with defenses a Counsel indeed, he facts of did not discuss the failed to advise the a accused that Appellee’s attorney Appellee’s attorney respond- 1. that testified he based this case?” ed, conclusion, advice, upon you mean, “What do consent?” appellee pointed out, fact that had consulted him on As the district court “This period eight kidnapping civil matters over a awas ease wherein lack of years attorney ap- prosecution’s ten and the knew that consent is an element of the pellee, salesman, a local automobile “had case.” good up time”; a been citizen to this that pointed out, 3. The district court also that record; criminal had no accepting the State trial court “on change going that com- had been with the plea guilty guilty from not plaining in- witness for some time and the any inquiry failed make standing into the under- concerning charges grew giving cident rise to out of the accused quarrel friends”; of “a between two that plea.” nature and police he had talked officer and with appel- The record discloses that when attorney deputy they district had lee’s case was called for trial in the State told him that section 288a following colloquy court ensued: objection would dismissed and no would People “The Court: the matter of appellee plead be made to guilty (appellee’s Mr........... remaining charges. Appel- counsel), Glenn Rose. attorney lee’s testified that these officials matter, “Appellee’s Counsel: say they did recom- either that would Honor, changing plea Your we are in mend or that the first two counts. granted. fact be just “The Court: Wait a moment. Appellee’s attorney May in de- that the-- see scribing “Appellee’s chang- said the incident Counsel: We are complaining going had been with the wit- to the first two counts. ness for some time and he “went “The Court: Pardon? girl’s picked up “Appellee’s Changing her house and Counsel: quarrel.” had had a first two counts from attorney general ap- deputy kidnapping asked and 245. attorney, “Now, pellee’s Very well, take it de- “The Court: does the such, you may it as while not have labeled fendant wish to—does the certainly question you occurred to that the wish to withdraw heretofore question was a of consent as to the first second count there entered might Maryland, prison result (1963). And for- sentence, unequivocally assured L.Ed.2d granted pro- compliance enough; appellee mal was not accused that he would reasonably adequate was entitled to bation.” Gillies, su- fessional aid. Von Moltke v. The district held that court 316; pra, at pre- “totally

retained counsel failed Olson, supra, Hawk sent the cause fun- 116; Cunningham, su- Jones respect.” damental The court concluded pra. Comment, 112 U. Pa.L.Rev. not accorded due “was Cf. Brubaker v. process court. of law [State] denied fundamental fairness He was disposition comport his case. This minimal stand- did not already resulted viction which has ards of service years period plead guilty of seven incarceration advise to on permitted ground “guaranteed” stand.” probation should not be to was any probation without assurance of was entitled aid granted, would in fact be without check- plea. determining “The counsel ing prevented the statute which plead guilty is a decision decision to probation for one of the offenses judgment allow a of conviction to guilty plea advised, which a was without hearing entered decision without —a any effort to determine what sentence and which forecloses which is irrevocable denied, was if were establishing any possibility innocence. of * * * legal inquiry, and factu- without or of needs the aid [The accused] al, appellee’s into the of merits assertions lest he the victim of over- counsel of innocence. “Prior an accused trial prosecutors, com- zealous of the law’s rely upon is entitled to his counsel ignorance plexity, of be- his own independent make an examination of the Kaiser, 323 wilderment.” v. Williams facts, circumstances, pleadings and laws 363, 471, 475-476, 65 89 L.Ed. U.S. S.Ct. involved and then to offer his Ashe, (1945). 398 Palmer informed See also v. plea as en- to what should be 134, 191, 154 342 72 96 L.Ed. U.S. Gillies, tered.” Von Moltke v. Gillies, (1951); Von v. Moltke (1948).5 68 S.Ct. 322 92 L.Ed. 309 68 S.Ct. (Emphasis added.) (1948); Olson, 326 Hawk v. (1945); 61 suggestion 90 L.Ed. agree- There is a that an Cunningham, guilty 352- Jones v. ment to the sections 1963). v. exchange Cir. Cf. Hamilton and 245 Alabama, charge of dismissal of section 288a was (1961); v. range White permissible within the broad of you subsequent hearing probation the information? Will answer? of At a was you understand, by judge, Do wish You Sir? denied and your plea prescribed by first withdraw was sentenced to the terms Nothing information? second count of the law on both counts. was said hearing regarding “The Yes. Defendant: the ap- the second you re-arraign possible consequences “The Court: Will nature and pellee’s guilty plea. as to counts one two. defendant “The Clerk: Rose. Glenn emphasis appears 4. The in the district which section of “The Court: Under court’s order. you proceeding as are the code States, count, McCreary? 5. Our in Pinedo It isn’t in decision v. Mr. first suggests- (9th Cir., 1965), 347 F.2d 142 here. clerk principles “Appellee’s sistent with think it stated Counsel: upheld fac- text. We court’s district 207.” his formal tual in enter- determination Pinedo then entered guilty plea prosecutor guilty plea moved had effective copulation oral sistance counsel. dismissal of the for a charge. choice, though stand, first, up- shown even because collateral attack judgment precluded by appel- have been ill-ad on the ultimate event to guilty plea and, second, 42 Cal. vised. 62 Cal.2d lee’s re because even Rptr. 236, process But a 398 P.2d 428 due denied charge guilty law, to the section that denial was not the result as much could have barred action or inaction the State. 288a to the section A does not immunize a charge, on maximum sentence from a collateral attack chal- twenty-five the section 207 lenging validity the constitutional years, the maximum sentence whereas Palmer, Von Moltke itself. years. under fifteen section 288a was Hawk, supra, involved collateral attacks Moreover, by appellee’s the choice made upon based total lack of counsel when weighing upon counsel was not based plead guilty. Wright the See also per of these risks. rested (9th Cir., assumption sonal Von Moltke Cunningham “sure.” Jones, supra, Reagan, and also Wilson v. (9th Cir., 1965), undisputed F.2d 45 himself sustained following guilty pleas collateral supposed attacks was never consulted as to the where, case, strategy. as in this was avail- the course of the State performance inadequate. able corpus hearing presiding but his habeas offi- Wilson, See also Hale 364 F.2d 906 cer asked “You didn’t counsel: (9th Cir., 1966). taking discuss a the merits of relative might, calculated risk or could be that he Appellee’s right diminished, was counts, denied on the other two remedy barred, nor his for want of least, it, if but that it would be worth “State action.” gets Appel- dispensement?” the 288a charged, punished by pri- convicted and answered, “No, lee’s counsel I did not.” individuals, by vate State. sought deprive entering guilty was the State which The aid of counsel in liberty, him plea may of his and he was entitled be waived. But “[t]o course to the effective assistance of counsel be valid such waiver must be made with meeting challenge. apprehension the State’s an Since he of the nature of the assistance, lacked charges, statutory such and did not included waive offenses it, deprived them, range pun- of his constitutional within allowable right, remedy. thereunder, possible is entitled ishments defenses to mitiga- and circumstances above, As noted it makes no difference thereof, tion and all other facts essential counsel, had ineffective understanding to a broad of the whole rather than no counsel at all. Gillies, matter.” Von 332 U.S. Moltke v. It also makes no difference whether 708, 724, (1948). 68 323 All S.Ct. appointed by counsel was retained or aside, other matters it is uncontradicted court, inadequacy or whether counsel’s “guaran- on the record that apparent should have been to the court product teed” that of his would prosecutor at the or time was made probation, advised, and was not either only by subsequent evident disclosures. court, counsel or that his clearly This is the federal rule. Randaz- expose imprisonment, him to States, (5th zo v. United 339 F.2d 81 possibly long thirty-five years.6 for as Cir., 1964); States, Munich v. United argues though ap- (9th Cir., 1964); The State that even 337 F.2d 356 Porter pellee States, did not have effective assistance 298 F.2d 463- counsel, (5th Cir., 1962); Kyle 464 conviction must nonetheless v. United States, eligible 6. As we held in Munich v. United that he will not be (9th Cir., 1964), parole, “In 337 F.2d 356 or does not with understand- who, entering plea.' one at the time of of such a is not aware of fact 337 F.2d at 616 1959); Alabama, (9th Cir., States, him.” Powell v. State of F.2d 657 States, L.Ed. 158 Craig U.S. S.Ct. v. United short, 1954). (6th Cir., has been assistance of it effective Since guaranteed by counsel is Gideon v. Wain the Sixth that the effect of settled 792, 9 right, it Fourteenth Amendments because S.Ct. trial,” (1963), “the fair Pointer render “essential to a was to 1065; Texas, supra, right assist Amendment’s S.Ct. Sixth * * * obligatory upon Wainright, supra, Gideon of counsel ance Texas, 342, States,” 792.8 Pointer v. State 400, 403, 85 Clearly of counsel effective assistance ap (1965), the rule it is 13 L.Ed.2d 923 equally trial” “essential to a fair prosecutions plicable well.7 State prose- whether not the court or the contrary anom- have the A rule would directly depriving participates cutor diminishing only the alous effect the accused In either case of that aid. undertake bear of those who lacking equally the accused representation, own knowledge necessary cost of their fessional skill and remedy liberty. protection that defendants have life clear compen- There be less reason to knowledge it to leave the State deficiency Dickson, 310 Brubaker v. sate counsel. in the one But if case than the other. proceedings subsequent collateral for the rule is basis But true discharges proving his burden of underlies be found in the reason which that he was in fact without effective right itself. to assistance shown, sistance of counsel he has absent Amendment is embodied the Sixth waiver, procedings which re- recognition of the obvious in “realistic imprisonment sulted in his fun- average does truth that damentally unfair, and he is therefore protect skill have the remedy. entitled to a brought a tribunal when before himself The is affirmed. liberty.” power life or take his with 462-463, Zerbst, 304 U.S. Johnson v. 1022, 82 L.Ed.(1938). CHAMBERS, Judge (concur- 58 S.Ct. Circuit incorporated Process ring). Due the be Fourteenth Amendment Clause of the always depressed when, I am because counsel,”

cause, the aid of “without concepts law, we have to over- knowl skill and “lacks both the rule a coordinate court such as the Su- defense, prepare edge adequately his preme California, Court which though perfect He one. he have a even zealously protecting leader in guiding requires hand against of the individual. every proceedings step in the ” convicting innocent,’ Pointer, Johnson commentators 7. Even Jersey, repre- general agreement of New 384 U.S. (1966), probably preferable, 16 L.Ed.2d such arid sented the requiring applicable majority, rule of evi- both State exclusion view through g., See, prosecutions. obtained unreasonable e. dence and Federal forbidding (1965); seizure, search and the rule Vand.L.Rev. (1964); to testi- comment on a defendant’s failure 296-301 59 N.W.L.Rev. fy, excluding (1964); 819, rule statements ob- Wash.L.Rev. in-custody interrogation during tained Va.L.Rev. complying procedures with the established requiring aid of rule 8. The Arizona, Miranda v. State requiring in- (like of an exclusion rule 1602, 16 86 S.Ct. distinguish- voluntary confession) thus Illinois, Escobedo v. State not affect do which from other rules able 1758, 12 L.Ed.2d 977. “ fact-finding integrity very ‘the danger of process’ ‘the clear avert] [or what But I cannot CO., Inc., Appellant, S & S LOGGING side. on the state done here appointed Supreme a re Court California judge, Superior L. Jordan Barker, tired Court B. BARKER and Jane Doe G. wife, Jones, Quentin peniten his Bob Jones and Jane go Doe Martinelli, San wife, Ivan O. Jones and Jane Doe report, hearing. tiary His and hold a wife, Jones, his Harold C. Chriswell and simply gentlemanly terms, means he Chriswell, wife, Iris E. Wm. O. Ben story of Rose’s did not believe Benecke, wife, ecke and Ruth Sum I have counsel. He saw the witness. Washington Company, mit Timber paper transcript. on the Even read the corporation, Co., Eclipse Timber Defendants, my transcript, about his I doubts Washington corporation, lawyer testimony. picture see a Hovde, Jane Lewis Hovde and Doe say stultifying himself, cannot no to who wife, Sumas, Bank bank imploring him. burden those Defendants, ing corporation, Additional proof was on Rose. (Harold C. Chriswell et ux. and Wm. O. Supreme of California But the Defendants), Appel Benecke et ux. of referee. it not bound announces lees. says accept Then, effect, it will No. 19896. done, This Rose’s version of the facts. Appeals United States Court of say amount to it seems to facts still Ninth Circuit. nothing. In Re 62 Cal.2d Aug. Cal.Rptr. 236, 398 P.2d 428. hearing, On federal

think, desired, if it district court exploration

could have made its own representa facts on

determination of the nonrepresentation.

tion did not. hearing

At the conclusion of the federal

(not hearing) an at the state’s assistant

torney general stipulated writing

present counsel for “said Rose that [trial truthfully to the best

counsel]

of his state [the recollection and belief at hearing].”

referee’s reason for a So evidentiary hearing

new was removed. concession, sup

In view of the I right. Judge

pose our district court was

Browning’s opinion, think, sweeps I too

broadly, do concur in the result.

Judge Browning’s opinion get

us a dozen cases where we would distinguish Rose case. Judge (concur-

KOELSCH, Circuit

ring). Judge stated concur the result

Browning’s opinion ex- in the views special by Judge

pressed in his Chambers

concurrence.

Case Details

Case Name: Lawrence E. Wilson, Warden San Quentin State Prison v. Glenn Rose

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 12, 1966

Citation: 366 F.2d 611

Docket Number: 20250_1

Court Abbreviation: 9th Cir.