People v. Wells

courts, for he asserts that the prison officials interfered with his attempts to communicate with this court while his appeal was pending.

In 1944 this court did not automatically appoint counsel for convicted appellants claiming indigence, nor did it routinely inform them of a right to counsel on appeal. At that time, the filing of a record on appeal would evoke a notice from the court clerk to the appellant, instructing him to file his brief within a designated period. Upon the filing of a brief in propria persona, the court would make an independent investigation of the record for error other than that urged by the appellant. The court would grant an application for appointment of counsel when that action seemed advantageous to the defendant or helpful to the court. (See People v. Wilson (1962) 208 Cal.App.2d 256 , 257 [ 25 Cal.Rptr. 97 ].) Such appears to have been a customary procedure among California appellate courts in the years preceding Douglas v. California. (See People v. Hyde (1958) 51 Cal.2d 152 , 154 [ 331 P.2d 42 ]; People v. Douglas (1960) 187 Cal.App.2d 802 , 812 [ 10 Cal.Rptr. 188 ]; People v. Logan (1955) 137 Cal.App.2d 331 , 332-333 [ 290 P.2d 11 ].) Wells, however, does not claim that he was ignorant of the availability of court-appointed counsel on appeal. Instead, he alleges, truthfully or not, that he sought such counsel at the hands of this court. Thus he is not in the situation of a defendant deprived of counsel through a coupling of the court’s failure to inform him and his own ignorance of his rights.

In a declaration supporting his motion to recall the remittitur, Wells states that during most of the time occupied by his appeal he was held in solitary confinement in Folsom Prison; that his requests for access to the law library were rejected; that his brief on appeal was prepared by another inmate who was not a lawyer; that he wrote letters to this court declaring that he was indigent and needed a court-appointed lawyer to prosecute his appeal; that the prison officials refused to transmit these letters because they contained criticism of the prison administration. The inmate who wrote the brief states that, aside from brief messages, he had no opportunity to confer with Wells, and the brief was largely the product of his own guesswork.

The Attorney General has filed copies of prison records demonstrating that Wells was aggressive during the period in question; that he told the warden he would have access to a knife so long as he was at Folsom; that he indulged in fre-'

If a- lawyer could not effectively represent - Wells without opportunities for consultation, his nonlawyer-collaborator could not do so either. Wells’ isolation and the prevention of consultation with his brief writer were not imposed for the purpose of hampering his appeal, yet had that effect. The remedy lay not with the prison authorities, but with this court. His inmate-prepared brief was filed on December 18, 1944. On its opening page the brief stated: “Appellant is confined in solitary confinement at the prison and has been since the alleged offense on August 15, 1944. This brief is written in the interest of justice for appellant by prison inmate who has a very limited knowledge of law. ’ ’

The brief writer’s statement could only arouse judicial doubt as to the brief’s completeness and competence. Wells’ letter of February 3 complaining of hindrances and confiscation of his legal papers should have aroused further doubt. Had this court in 1945 been gifted with the constitutional hindsight emanating from Douglas (and from Swenson, its corollary), doubtless an offer to appoint counsel would have been forthcoming. Since these decisions are fully retrospective, that hindsight must now form the standard for measuring the court’s conduct of the case in 1945. An offer of counsel could have been accepted or rejected by the appellant. Rejection would have demonstrated his satisfaction with the inmate-prepared brief on file. Acceptance would have permitted the attorney-client consultation offered by the warden. Even at the stage represented by Wells’ February 3 letter, it was not too late to supply legal representation. (In re Mitchell, supra, 68 Cal.2d at p. 263.) The offer, however, was not made. The case was permitted to enter the decisional stage notwithstanding strong evidences of strangulated, incompetent preparation. The point is that an offer to appoint an attorney would have represented an obvious and complete accommodation of the dual interests of prison safety and access to the courts. The circumstances thus call for consideration of the proposed appeal on its merits as presented by the defendant’s present counsel.

Trial Court Proceedings and Evidence Upon Wells’ 1944 arraignment in the superior court, an attorney was appointed to represent him. Three days before the trial date Wells appeared and requested the attorney’s withdrawal. The request was granted. At the opening of the trial, during presentation of the prosecution case and part of the defense evidence, he was represented by a second attorney.

The attorney made an opening statement, telling the jury that the defense would show that an inmate named Brown had threatened Wells with attack and Wells had picked up the knife in self-defense. After several defense witnesses had testified, Wells requested withdrawal of the second attorney and permission to conduct his own ease. Wells then presented several more witnesses and took the stand himself. The attorney, however, was later permitted to return to the trial to make the defense arguments to the jury.

We summarize the evidence: Two prison guards called as prosecution witnesses testified that they had been in the prison kitchen during the midday meal; that they saw Brown back into the kitchen from the adjoining mess hall and defendant Wells advance toward him; that Brown was bleeding from cuts in the chest; that Wells had a knife in his hand; that, although told to surrender the knife, Wells refused to do so but offered to take the knife to the office of the captain of the guard and surrender it to the captain. One of the guards accompanied Wells to the captain’s office, where Wells laid the knife on a desk.

Other witnesses described a knife affray in the mess hall, which happened after Wells requested another inmate to call Brown in from the kitchen, where the latter worked. Wells had brought a knife into the mess hall, concealed between the pages of a music book. He placed the knife on a bench, covering it with his jacket. Brown approached Wells with his hand in his pocket. After a brief exchange of words Wells picked up the jacket in his left hand and the knife in his right. Brown too had a knife and the two men struck at each other. Wells wounded Brown" in the chest and abdomen; the latter backed into the kitchen. At some point Wells struck the knife from Brown’s hand. As to which of the two was the aggressor, the evidence was in conflict.

Although the prosecution objected to evidence predicated on the theory of self-defense, such evidence was admitted, the court indicating that its jury instructions would define the effect of such evidence.

Propriety of Jury Instructions on Criminal Intent, and Self-Defense

The jury instructions are now part of the record, .although not. included at the time of the 1945 decision. Defendant .assigns error in ■ instructions on criminal intent-and-self-defense. The court rejected a standard instruction on- criminal intent, combining the provisions of Penal Code sections 20

“stringent statutes governing prison safety.” (People v. Romo (1967) 256 Cal.App.2d 589 , 595 [ 64 Cal.Rptr. 151 ].) Its purpose would be frustrated were prisoners allowed to arm themselves in proclaimed or actual fear of anticipated attack by other inmates. Thus a group of California decisions place section 4502 among the statutes whose violation does not depend upon proof of guilty intent, holding that its prohibition is absolute; that it is enough to show the defendant’s knowing possession of the forbidden weapon; that his purpose of arming himself for self-defense against an anticipated assault is no defense. (People v. Marcus (1953) 120 Cal.App.2d 347 , 348 [ 260 P.2d 1051 ]; People v. Crenshaw (1946) 74 Cal.App.2d 26 , 30 [ 167 P.2d 781 ]; People v. Wells, supra, 68 Cal.App.2d at p. 482.) Other decisions accept strict liability as the general rule, but suggest by dicta the possibility of two extremely narrow exceptions: one, that the accused was in immediate danger when he armed himself and without opportunity to seek the protection of prison authorities, or second, that his possession was authorized for the performance of prison duties such as kitchen or shop work. (People v. Purta (1968) 259 Cal.App.2d 71 , 73-74 [ 66 Cal.Rptr. 38 ]; People v. Otis (1959) 174 Cal.App.2d 119 , 125 [ 344 P.2d 342 ].)

All these decisions expressly or implicitly accept the proposition that self-defense against a future, anticipated assault is no defense to a charge of violating section 4502. On the assumption that the two narrow exceptions represent available defenses, defendant brings himself within neither one. The evidence showed without conflict that he had armed himself with the knife in the mess hall when Brown was not in the room and when danger was not imminent. The first quoted instruction correctly told the jury that knowing possession was necessary. (People v. Patterson (1951) 102 Cal.App.2d 675 , 677-678 [ 228 P.2d 51 ].) The second quoted instruction correctly told the jury that Wells’ arming himself in the belief that he might later be attacked did not justify his action.

’ The information filed by the district attorney charged possession of the knife on a certain day without reference to any particular room or area of the prison. At the commencement of the last-quoted instruction, the trial court directed the jury to limit itself to the question of Wells’ possession of the knife in the prison kitchen, after he and Brown had made their way into that room from the adjoining mess hall. The instruction was contradictory because its last

paragraph referred to evidence that the defendant had the knife on a bench (which was in the mess hall, not the kitchen). We discern no valid reason for the limitation in the opening part of the instruction. It was erroneous but harmless to the defense.

Even if, as a matter of law, an accused may show that he gained possession to defend himself against an immediate attack, the evidence demonstrated that Wells had armed himself in a nonemergent situation. His possession was thus unlawful, and none of the ensuing events altered its unlawful character. Essentially the instructions declared that the law did not justify the accused in arming himself in the belief that he would later be attacked. That declaration did not at all misstate the law. Although not models, the challenged instructions were not prejudicially erroneous.

Sufficiency of the Evidence

Although defendant does not directly charge lack of substantial evidence to support the verdict, he contends that he “did not possess the knife within the meaning of section 4502.” His thesis is that the court’s jury instructions limited the charge of possession to the prison kitchen and to the period of time beginning with the guard’s demand that Wells turn the knife over to him; this limited and brief possession, he urges, had the officers’ acquiescence and it terminated when he “voluntarily and willingly” placed the knife on the captain’s desk.

The contention has no merit. The evidence demonstrated an earlier stage of possession, in the prison mess hall. Even as limited by the instructions, however, the charge was amply sustained, since nonconflieting evidence demonstrated Wells’ possession of the knife in the prison kitchen before he was ordered to turn it over to the guards.

Claim, of Self-Incrimination

Wells requested withdrawal of his trial counsel after several defense witnesses had testified. The judge did not inform Wells that he had a constitutional privilege not to testify. After four more defense witnesses had testified, Wells took the stand himself. In essence, he told of threats by Brown and of his own efforts toward amity; of arming himself with a knife as he entered the mess hall; of carrying it between the pages of a music book and concealing it beneath a jacket at his seat in the mess hall; of sending a prisoner friend to talk peace with Brown; of Brown’s approach, hand in pocket, and

his plea to Brown tó take his hand from the pocket and stop advancing; of the ensuing fight.

When an unrepresented defendant is about to take the stand in a criminal case, the court must make certain that the defendant is aware of his constitutional privilege not to testify. (People v. Kramer (1964) 227 Cal.App.2d 199 , 201-203 [ 38 Cal.Rptr. 487 ]; People v. Glaser (1965) 238 Cal.App. 2d 819 , 828-829 [ 48 Cal.Rptr. 427 ].) Absence of the warning is now assigned as reversible error.

The record supplies some basis for the belief that Wells was aware of the privilege. He had had previous experience in criminal proceedings. He conducted his portion of the trial with a degree of sophistication and finesse. Since his former attorney returned to the ease for the purpose of jury argument, it is reasonable to infer that he remained in the courtroom to hear the remaining witnesses, providing Wells an opportunity for legal advice. Nor does Wells now assert that he was actually ignorant of his right to refrain from testifying. He relies instead on the silence of the record. To demand that one of his position make out a prima facie case of ignorance by a simple averment of fact flies in the face of no constitutional mandate. Case law, however, calls for a record which shows on its face an informed and intelligent waiver of a constitutional right. (See Carnley v. Cochran (1962) 369 U.S. 506 , 513 [ 8 L.Ed.2d 70 , 75-76, 82 S.Ct. 884 ]; Johnson v. Zerbst (1938) 304 U.S. 458 , 465 [ 82 L.Ed. 1461 , 1467, 58 S.Ct. 1019 , 146 A.L.R. 357 ]; In re Johnson (1965) 62 Cal.2d 325 , 333 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ]; People v. Kramer, supra, 227 Cal.App.2d 199 .) Although the present record arouses suspicion of an informed waiver, it falls short of demonstration. Through the trial court’s failure to inform the defendant of his right to refrain from testifying, constitutional error occurred.

Some incursions on the guarantee against self-incrimination may turn out to be so harmless in the setting of a particular case that they do not warrant reversal. (Chapman v. California (1967) 386 U.S. 18 , 22-24 [ 17 L.Ed.2d 705 , 709-711, 87 S.Ct. 824 ]; People v. Ross (1967) 67 Cal.2d 64 , 73-74 [ 60 Cal.Rptr. 254 , 429 P.2d 606 ]; see also People v. Glaser, supra, 238 Cal.App.2d at p. 829; People v. O’Bryan (1913) 165 Cal. 55 , 67 [ 130 P. 1042 ].) Affirmance is possible notwithstanding the error, if the reviewing court finds no reasonable possibility that the error affected the outcome of the trial. (People v. Ross, supra.)

claim of prejudicial misconduct is an afterthought based upon an unjustified inference from the trial court’s observation that the prosecutor had gone “a little beyond” the court’s ruling.

Although any exploration of the trial judge’s remark involves speculation, the record militates against the implication that it was actuated by prejudicial misconduct of the prosecutor. Self-defense, not a denial of possession of the knife, was the sole trial theory of the defense. The prosecutor’s objection to evidence of self-defense had been provisionally overruled, the trial judge preferring to defer his ruling on the significance of the issue. The reporter’s transcript states that during the jury argument by Wells’ attorney (as well as during the surrebuttal argument permitted him by the court), there were numerous objections by the district attorney and discussions of law by court and counsel. The transcript notes no objection whatever during the prosecutor’s arguments. The absence of objection by Wells’ trial attorney is significant, for the attorney was vigorous during the intervals of activity permitted him by his client. The “ruling” referred to by the trial judge was apparently a ruling on the self-defense issue, that being the only substantial issue in the trial. The district attorney, it may be inferred, went outside that ruling in commenting on the credibility of the defense witnesses. However irrelevant to the question of guilt, the self-defense issue had been created by the defense. In debating that issue, the prosecutor did not trespass beyond the scope of the case as made by the defense. In offering surrebuttal argument to the defense, the trial court gave no indication that the prosecutor had indulged in prejudicial improprieties. The inference is justified—both from defendant’s 23-year silence on the point and from the trial circumstances—that no such improprieties occurred.

Having considered all the contentions defendant would advance in appealing on the merits, the court concludes that no reversible error would be shown. Recall of the remittitur would be an idle act and the motion is therefore denied.

. Pierce, P. J., and Regan, J., concurred.

- Appellant's petition for a hearing by the Supreme Court was denied June 19,1968.--