In re Hough

The petitioner seeks his release from the custody of the warden of the State Prison at San Quentin after his pleas of guilty to two counts of murder upon which the death sentence was pronounced against him.

The ground upon which his petition for release is based is that the judgments of conviction are illegal and are violative of the Fourteenth Amendment of the Constitution of the United States, and deprive petitioner of his life without due process of law. His main complaint is that his pleas of guilty were secured and induced by improper and illegal means, which render hi's conviction void and of no legal effect. As will more fully hereinafter appear, petitioner was represented during the pendency of his action in the trial court and on the appeal of said action to this court by a representative of the public defender of the county. While his said appeal was pending, he changed attorneys and hi's newly acquired attorney represents him in the present proceeding.

Petitioner was indicted for the murder of his wife and her male companion on June 13, 1942, at Long Beach in the county of Los Angeles. The original indictment was in two counts. By count one he was charged with the murder of his wife, Inez Hough, and by count two, with the murder of Frederick L. Culp. To each of these two counts he pleaded

He now contends, in the first place, that his counsel was misled by the trial judge and the prosecuting officers of the county by assurances that if petitioner would withdraw his pleas of not guilty and plead guilty to the amended indictment, the sentence of death would not be imposed. The case against petitioner was before us on appeal, and the factual situation therein involved is set forth in some detail in our opinion therein this day filed. (People v. Sough, post, p. 535 [ 150 P.2d 444 ].)

The record before us in the present proceeding fails to show that either the trial judge or anyone connected with the district attorney’s office or with the prosecution of the case against petitioner made any promise or commitment, directly or indirectly, to petitioner or to his counsel in consideration of his withdrawal of his pleas of not guilty and of his entry of pleas of guilty. Deputy District Attorney Sten was assigned by the district attorney’s office to represent the prosecution, and Deputy District Attorney Hunt was assigned to assist Mr. Sten in the prosecution of the case. In the numerous conferences had between them and petitioner’s counsel, Deputy District Attorney Sten informed the latter that the district attorney’s office would not consent to life imprisonment, or any lesser punishment than the death penalty. The trial judge who took part in some of those conferences “hoping to get a satisfactory disposition of this case, stated that if the District Attorney would be satisfied with life imprisonment, it would be satisfactory to the Court.” The trial judge, however, at no time promised or intimated to petitioner or his counsel that he would impose the penalty of life imprisonment in opposition to the recommendation of the district attorney’s office.

The case after some continuances was set down for trial for August 11th. The day before, the trial judge called into his chambers the petitioner’s attorney and the two deputy dis

Before the opening of court the next morning, August 12th, the trial judge called petitioner’s counsel and Mr. Sten and Mr. Hunt into his chambers and made the following statement to petitioner’s counsel: “Before you proceed in this matter I don’t want you to be misled by any of the conversations you have had with me, or by any conversation that you have had with anyone else, or by anything that you might have heard from anyone, because if I try this case I may have to pronounce the death penalty, and I want you to know this in advance so you won’t plead the defendant guilty with any expectations. We have a jury panel present and you can have a jury trial.” To this statement petitioner’s counsel replied: “All I want to know is, do you start this case with an open mind?” In answer to this question Judge Still (the trial judge) states in his affidavit: “I told him that I did, and he [petitioner’s counsel] said: ‘I am going to proceed as I have advised you.’ ” Immediately following this meeting, court convened with petitioner and his counsel present. Petitioner withdrew his former pleas of not guilty and not guilty by reason of insanity and pleaded guilty to the two counts of murder contained in the amended indictment and admitted his prior felony conviction. Thereupon the court proceeded to take evidence to determine the degree of the crime and to fix the punishment. This, hearing consumed the greater part

It will thus be seen that there is absolutely no showing that either the trial judge or the district attorney offered any promise or inducement to petitioner’s attorney or to petitioner to withdraw his pleas of not guilty and enter pleas of guilty. There is no attempt to show that any person whatever connected with the prosecution of petitioner made any promise to either petitioner or his counsel or misled either of them as to the entry of petitioner’s pleas of guilty. Petitioner leans heavily upon certain statements made to his attorney by Deputy District Attorney Hunt. He refers to him as the “veteran prosecutor, ’ ’ and a lawyer with much more experience in the prosecution of cases than Mr. Sten. But the record shows without conflict that Mr. Sten was in charge of the prosecution of the case against petitioner and that Mr. Hunt was assigned to assist Mr. Sten, but was without any authority whatever to bind the district attorney’s office in any matter in reference to the case. The record further shows without dispute that Mr. Hunt at no time made any promise or inducement to petitioner or his counsel respecting petitioner’s pleas in said action. Mr. Hunt did state to petitioner’s counsel at various times before petitioner entered his pleas of guilty, that in his opinion a sentence of life imprisonment would satisfy the ends of justice, but, as just stated, he at no time promised directly, indirectly, or impliedly, that he would ask or recommend to the court a sentence of life imprisonment in ■ case pleas of guilty were entered. Petitioner’s counsel well knew of Mr. Hunt’s position in the case and that he had no authority to bind the district attorney’s office respecting any matter involved in the case and Mr. Hunt, realizing his subordinate position, never purported to do so. In the conferences before the trial judge he expressed his views respecting the punishment to be administered in the case, and that was all. According to the trial judge “Mr. Hunt took only a negligible part in the conversation. ’ ’ The attempt to show that petitioner or his attorney was misled by any statement or act on the part of Mr. Hunt finds no support whatever in the record before us.

Petitioner’s second contention rests upon the follow

The office of public defender was created by an act of the Legislature enacted in 1921. (See Stats. 1921, p. 354, ch. 245, Deering’s Gen. Laws, 1937, Act 1910.) By section 5 of this act the duties of such an officer are defined in the following terms, so far as pertinent to this proceeding: “Upon request of the defendant or upon order of the court, the public defender shall defend, without expense to them, all persons who are not financially able to employ counsel and who are charged with the commission of any contempt, misdemeanor, felony or other offense. He shall also, upon request, give counsel and advice to such persons, in and about any charge against them upon which he is conducting the defense, and he shall prosecute all appeals to a higher court or courts, of any person who has been convicted upon any such charge, where, in his opinion, such appeal will, or might reasonably be expected to, result in the reversal or modification of the judgment of conviction. ’ ’ While the act has been amended on two occasions (Stats. 1927, p. 1886; Stats. 1931, p. 2566) the quoted portion of section 5 has not been changed in any respect. Section 6 of the act, both in its original and amended form, provides for the appointment by the board of supervisors of a sufficient number of deputies to conduct the office of public defender properly and fixes their salaries.

Under this statute when the public defender is ap

The further contention is made by petitioner that his former attorney assured him that should he plead guilty to the charges against him, he would not suffer the death penalty. In fact petitioner under oath states that Mr. Hovden stated to him “I guarantee you that if you plead guilty you won’t get gassed.” Mr. Hovden filed a lengthy affidavit in support of petitioner’s original application in this matter and in other ways has shown his willingness to assist petitioner in his present efforts to escape from the judgment rendered against him by the trial court. He has shown himself to be a most willing witness in petitioner’s behalf. However he expressly denies giving to petitioner any such assurance as petitioner claims, and he further denies making the statement quoted above or “any other statement which in substance or effect guaranteed or assured any particular punishment to be imposed.” The record shows that Mr. Hovden had had over

In seeking to avoid the judgment in this case the petitioner claims further that his former attorney failed to advise him fully as to the attitude of the trial judge and district attorney’s office respecting the punishment which might be imposed upon him in case he should plead guilty to the two charges against him. In support of this contention the only claim made by petitioner is that his former attorney failed to inform him of the conversation between the trial judge, the two deputy district attorneys and Mr. Hovden held on the morning of August 12th just prior to the session of the court at which petitioner withdrew his former pleas and pleaded guilty to the two charges of murder set forth in the amended indictment. Petitioner’s former attorney admits that he did not inform petitioner of this conversation nor of the statement of the trial judge on that occasion for the reason that the remarks of the judge “were interpreted by affiant [his former attorney] not as indicating any change of mind of the trial court but as being a protective comment to absolve the court of any direct promise or commitment respecting punishment. ’ ’

Did the failure of his attorney to inform petitioner of this statement of the trial judge furnish any legal ground upon which this court can base an order setting aside petitioner’s pleas of guilty? Examining this matter in the light of all the surrounding circumstances and the law applicable thereto, we are of the opinion that the question just asked must be answered in the negative. The surrounding circumstances show that petitioner’s former attorney was a lawyer of more

Turning now to the legal phase of petitioner’s contention that his pleas of guilty should be set aside by reason of his former attorney’s failure to inform him of the trial court’s statement just prior to his entry of said pleas, we find it fairly “well settled in this state that this procedure to set aside a judgment after plea of guilty may only be resorted to where, on account of duress, fraud, or other force overreaching the free will and judgment of a defendant, he is deprived of his right to a trial on the merits.” (People v. Gottlieb, 25 Cal.App.2d 411 , 415 [ 77 P.2d 489 ], People v. Aseltine, 139 Cal.App. 768 , 780 [ 34 P.2d 830 ], In the Gottlieb case it is stated (p. 415) : “Neither does it avail appellant anything that he entered his plea solely on the advice of his counsel,

The early ease of People v. Miller, 114 Cal. 10 [ 45 P. 986 ], is in many respects like the situation now before us. The defendant was accused of the crime of murder. The court appointed two attorneys to represent him. He entered a plea of not guilty and his case was set down for trial. On the day fixed for the trial of his ease he appeared in court with his attorney and asked to withdraw his pleas of not guilty and to plead guilty. His request was granted and he entered a plea of guilty. The time was set for hearing testimony to fix the degree of the crime. After some continuances, evidence for this purpose and in mitigation of punishment was received on a number of different days. A further continuance was asked by defendant and denied by the court. Whereupon the defendant through his counsel asked to be allowed to withdraw his plea of guilty and to plead not guilty on the ground, as shown by affidavits filed by him at the hearing of said motion, that he (p. 14) “while in jail feared mob violence and summary death at the hands of lynchers, and that when he pleaded guilty he did so ‘without due deliberation and without fully realizing his position, and in the hope that by so doing the punishment to which he would be exposed, were he tried before a jury, would thereby be mitigated.’ ” The court denied his motion and on appeal in affirming the judgment this court stated (p. 16): “Appellant’s contention is that the court abused its discretion in not allowing him to withdraw his plea, interpose a plea of not guilty for the second time, and go before a jury for trial. Before judgment, the court may, at any time, permit this to be done (Pen. Code, sec. 1018), and the discretion thus vested is one to be liberally exercised. . . . But the mere fact that a defendant, knowing his rights and the consequences of his act, hoped or believed, or was led by his counsel to hope or believe, that he would receive a shorter sentence or a milder punishment by pleading guilty than that which would fall to his lot after trial and conviction by jury, presents no ground for the exercise of this liberal discretion.” That case was referred to by this court in the case of People v. Schwarz, 201 Cal. 309 [ 257 P. 71 ], and the following comment thereon was made on page 315 of the opinion: “The case of People v. Miller, 114 Cal. 10 , 16 [ 45 P. 986 ], it is said, supports the action of the

Under these authorities we are of the opinion that the petitioner under the facts here was bound by his pleas of guilty entered in the case then pending against him and may not have his pleas set aside or vacated by reason of any act of his attorney in advising him respecting his defense in said action, or withholding from him the information which his attorney honestly believed would be of no material assistance to his client before entering said pleas.

Petitioner also advances the contention that he was weak in body and in such a highly nervous and irrational state of mind as to render himself mentally incompetent to make a proper defense to the action against him, and that a plea of guilty by a defendant in such a mental state is no plea at all and should be set aside when the true facts are shown to the court. It is unnecessary to go into the details of petitioner’s condition subsequent to his arrest and during the progress of the action against him up to and during the hearing by the court after his pleas of guilty. After petitioner had pleaded not guilty by reason of insanity at his arraignment on the original indictment, the trial court appointed three alienists to examine petitioner as to his mental condition. Two of these alienists reported that petitioner was sane both at the time he killed his wife and at the time of their examination of him. One of the three was unable to state whether or not petitioner was sane. He did report that in his opinion the defendant “will be legally insane at the time of the hearing set for July 28, 1942” (the date then set for defendant’s trial). As noted above, the date of trial was advanced to August 12, 1942. Whether the court should have proceeded with the case against defendant in his then mental state was within the sound discretion of the trial judge. Under the circumstances shown and particularly in view of the report

The final contention of petitioner needs even less discussion than that just considered. Petitioner in this contention claims that the court proceeded to impose upon him the death penalty without taking aUy evidence to fix the punishment or to determine whether there were any mitigating circumstances sufficient to justify the judgment of life imprisonment rather than death. This contention is answered by what we have previously said in this opinion, that is, that after petitioner’s plea of guilty the court then proceeded to take evidence as to the degree of the crime and to fix the punishment, and that the greater part of three days was spent by the court in the hearing of said matter.

Petitioner bases his hope of sustaining this contention upon the statement of the court after petitioner had entered his pleas of guilty. This statement was made immediately after petitioner had entered said pleas and was in the following words: “Now the matter of fixing the degree remains. How do you want to take care of that?” It was in answer to this question and by agreement of all parties in the case that the court spent the greater part of three days in hearing the witnesses, both of the prosecution and the defense, and at its close both parties rested, the petitioner waived time for sentence and the court pronounced its judgment. There is no showing that this hearing was limited to the question of the degree of the crime and did not include evidence for the purpose of fixing the punishment. In fact it would be difficult if not impossible to separate these two purposes for which the evidence was admitted. In endeavoring to show that the crime was not of the first degree, a defendant would introduce every item of evidence which would have the least tendency to prove that he was only guilty of some lesser offense. This would include not only evidence that he was not guilty of the higher offense, but also such evidence if any he had, which would mitigate his offense and thus influence the court in fixing his crime at less than the supreme penalty.

We find nothing in the record before us which would justify the relief sought by the petitioner. The writ is accord

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.