Edward H. Bunker (hereinafter referred to as "defendant") is presently incarcerated in state prison under two judgments of the Superior Court of Los Angeles County.
In superior court case number 198278, he pled guilty, on March 3, 1958, to the crime of forgery; probation was denied and he was sentenced to state prison. On June 16, 1964, his term was fixed by the Adult Authority at eight years, and, on August 18, 1964, he was released on parole. Thereafter he was returned to prison as a parole violator, his parole was revoked, the term setting was vacated, and he is now held in state prison under the 1958 judgment with his term set at the maximum provided by statute (14 years) (Pen. Code, § 473). In part, his petition for habeas corpus challenged the validity of that confinement, defendant contending that, for reasons discussed below, the revocation of his parole was invalid and that, as a result, his term remains at eight years — a term,
While defendant was on parole from the 1958 sentence, he was arrested and charged with two counts of burglary and one of assault with a deadly weapon. Those charges ultimately resulted in the filing of an information in superior court case number 317687, his trial on that information, his conviction on May 27, 1966, on the two burglary charges (the assault count having been dismissed in the interest of justice), and his sentence to state prison, the sentences on the two burglary counts running concurrently with each other and concurrently with any unexpired sentence in case number 198278. He has appealed from that judgment; in addition, his petition for habeas corpus challenges the 1966 judgment on grounds hereinafter discussed.
Since, as will be seen, the contentions made on the appeal and on the petition for habeas corpus are, to some extent, interrelated, we deal with both cases in this one opinion. In so doing, we have considered, as bearing on the appeal, the appeal record, the briefs filed by defendant in propria persona and by respective counsel, the exhibits offered and those received in the trial court, the contents of the superior court file in case number 137687 and (it having been considered by the trial court) the superior court file in case No. 205699. In connection with the habeas corpus proceeding, we have considered all of the above matters, together with the additional briefs filed by defendant and by counsel in that matter and the documents attached to the return filed therein by the Attorney General. For the reasons hereinafter set forth, we conclude that the judgment of conviction should be affirmed and the petition for a writ of habeas corpus denied.
The attack on the confinement under the 1958 judgment is based on the following facts: Defendant was arrested for the offenses for which he was ultimately convicted in case No. 317687 on October 12, 1964. When he was arraigned in the magistrate's court, that officer declared a doubt as to defendant's present sanity, proceedings under section 1368 of the Penal Code were instituted and defendant was committed to Atascadero State Hospital. While he was being held under that commitment, on February 5, 1965, as a result of parole violation charges theretofore filed against him, his parole was "suspended," he was ordered returned to prison and the
Insofar as the petition for habeas corpus attacks the validity of defendant's present confinement under the 1958 sentence in case No. 198278, it states no facts justifying relief.
In case No. 317687, as we have said, defendant was charged with two counts of burglary, in violation of section 459 of the Penal Code and with one count of assault with a deadly weapon, in violation of section 245 of that code. He was found guilty and sentenced on the two burglary counts; the assault count was dismissed. He challenges the judgment of conviction on several grounds. Recognizing that some of his contentions are not available on appeal, he also sought habeas corpus. Because all of his contentions are properly before us
We consider first whether or not the evidence produced and admitted at the trial, assuming that it was admissible, was sufficient to support the verdicts of guilty.
Count I involved a burglary of the Student Prince Bar, committed at about 7 a.m., on a Sunday morning. The premises were ransacked, the pay telephone was ripped from the wall and taken away, money in a cash drawer was taken, and a hole was punched in the safe and some money was fished out of the safe through the hole. A woman living next door heard noises coming from the bar. When she went onto her porch, she saw an automobile parked at the rear door of the bar and saw a man run from the bar, carrying a pay telephone, enter the car and saw the car drive off. She identified defendant as the man. The identification was not in a lineup but the police brought defendant for identification. When she saw him full face she was unable to identify him, but when he was turned so that she saw his profile (as she had seen the profile of the burglar) she immediately identified defendant. The identification was repeated on the stand.
On the following day, the house of a couple named Sibley was entered and various items of personal property, including a woman's coat were taken. A neighbor saw two men, one a Negro and one white, carrying clothing from the house and putting it in a light colored Buick which had no license plates. She was unable to identify defendant as one of the men.
When the owners of the burglarized premises returned, the neighbor reported her observations to them. The owner's stepson, Henry Lee, immediately drove to the home of a Lonnie Logan. On cross-examination, Lee testified that he suspected that Logan, with whom he was acquainted, had been one of the burglars. As Lee entered Logan's house, he met defendant leaving. He followed defendant to a car, parked at the curb, which fitted the description of the one seen at the scene of the burglary. On the back seat of the car he saw his mother's coat — one of the missing articles. He reached into the car and
Shortly thereafter, Los Angeles police officers saw defendant driving a white Buick, without license plates, going through a red light. They gave chase and, after a chase of about five miles, over a twisting course, at high speed, during which defendant went through other red lights, he stopped the car and ran. He was followed and arrested. At the time of arrest, he made statements to the effect that he did not believe the officers were policemen, but that they were Catholic priests, engaged in harassing him.
Defendant was taken to the police station and, since he refused to give his name, he was booked as "John Doe I." At some later date, and in some manner never explained on the record, the name of "Marty Cagill, J.G., U.S.N.R." was also placed on the booking card.
The next morning, Officer Williams, after advising defendant of his constitutional rights in accordance with the requirements of Dorado [People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361)],
Interrogation of defendant resumed at 4:30 that afternoon, with both Officer Williams and Officer Lavold participating. Defendant was again warned of his rights. According to the
If the confessions obtained on October 13th were admissible, there can be no doubt of the sufficiency of the evidence. Without them, the evidence would support the conviction for the Student Prince burglary, although (as counsel argued to the jury) the eyewitness testimony was relatively weak. The evidence would also support the conviction for the Sibley burglary, although the evidence is far from strong, eyewitness identification is lacking, the connection with Logan remains unexplained, and only the presence of the coat in defendant's car and his violent reaction to its recovery actually connect him with that offense. As to the Sibley offense, thus, not only the admissibility but the credibility of defendant's confession is vital.
We turn next to consider the attacks made by defendant on the two confessions. He presents three arguments with reference to them:
(1) That they were "involuntary" in the traditional sense;
(2) That, assuming that the warnings of constitutional rights were given as claimed, there was no valid waiver of those rights; and
(3) That the entire story of his confessions is perjury, designed to cover up an illegal search and seizure. The first two contentions were made and argued at the trial and come before us on the appeal as well as on the habeas corpus petition; the third contention is raised for the first time in the habeas corpus proceeding.
The first contention rests on two arguments: (a) That the confessions were illegally obtained, since defendant had been in custody for some 18 hours without being taken before a magistrate; and (b) That defendant was mentally incompetent to make a "voluntary" confession.
The first argument, urged with vigor at the trial, is without merit.
The second argument rests on two factors. In the first place, defendant argues that the evidence of his remarks to the arresting officers and, later, to the interrogating officers, concerning his fear of a Catholic conspiracy, shows that he was subject to delusions and that his delusions affected his capacity to make a voluntary confession. The other argument is based on the fact that, as above set forth, he was shortly thereafter committed to Atascadero State Hospital, under Penal Code section 1368, as a person mentally incompetent to stand trial. He urged at the trial, and here, that if his condition when he was arraigned on October 22d was such as to raise a doubt of his sanity in the mind of the magistrate and if his condition on November 2d was such as to call for his commitment, then he must have been similarly incompetent on October 13th.
Although resting on a different legal theory, the contention that defendant had not intelligently waived his right to remain silent is based on the same arguments as we have just set forth in connection with the claim that the confession was involuntary. It is urged that the capacity to understand Dorado type warnings and capacity to make an intelligent waiver of Dorado rights involves the same mental process as does the capacity to participate in tactical and strategic decisions during the trial and that a defendant incompetent to stand trial is, a fortiori, incompetent to waive constitutional rights.
The argument is persuasive and it was presented to the trial court with skill and vigor by defendant's trial counsel. But the court had before it the testimony of the police officers, who had regarded defendant as understanding his rights, and a block of psychiatric reports based on a series of examinations, including the reports before the court in the section 1368 proceeding. The trial court, after considering all the data presented to it, and after argument, ruled that the confessions were admissible.
The perjury argument rests on the following theory: It appears from sundry documents in the record now before us on the habeas corpus proceeding, as well as from at least one document in the superior court file, that, after defendant's arrest, his car was searched, resulting in the discovery of the knife used in the assault on Lee and a hotel key and that, using the key, officers had searched defendant's room, finding loot from the Student Prince Bar burglary as well as documents identifying defendant. Defendant argues that it was this search (clearly illegal under Stoner v. California (1964) 376 U.S. 483 [11 L.Ed.2d 856, 84 S.Ct. 889]) that led to his identification with the Student Prince burglary, that Officer Williams knew this when he first interrogated defendant and that the entire testimony of Officers Williams and Lavold was an elaborate perjury, designed to cover up the illegal search.
The argument is ingenious, but the facts as we can discover them do not justify relief on habeas corpus.
In other words, nothing in the records before us justifies more than a vague suspicion of wrongful conduct. No evidence found by the search of the room was offered against defendant.
Defendant points to the fact that the confession interview was not recorded and that no stenographer was present. Officer Williams testified that he made notes of the confession on the back of the envelope containing defendant's police records and that he read them over to defendant who stated that they were correct. All of this was brought out on cross-examination and both the trial court and the jury were well
We conclude that the evidence supports the admissibility of the confessions and that the petition for habeas corpus does not set forth facts sufficient to justify relief on the theory of an intentional use of perjured testimony.
Defendant contends that the trial court's determination of the admissibility of the confessions was based, in part at least, on opinions expressed by the Department of Corrections and on a report of a conversation between defendant and a representative of his attorney, occurring while defendant was in the San Diego jail. The purported transcript of the jail conversation presented to us is far from satisfactory, either as to the persons involved or the circumstances surrounding its making. However, for the purpose of the present proceeding, we assume that it does represent an improper invasion of the attorney-client privilege. But, while the record shows that this material, together with other data, was presented to Judge Allen Miller of the superior court when a motion under section 995 of the Penal Code had been on his calendar, there is nothing to show that any other judge ever saw it. A motion to disqualify Judge Miller was made and allowed, the section 995 motion proceeded before Judge Lawler, and the trial was before Judge Shidler.
Defendant contended by his motion under section 995, at the trial, and here, that the trial court had lost jurisdiction to try him because of an illegal delay in bringing him to trial.
That contention, as now before us, is twofold: (1) That there was an improper delay from April until September
The record does not support the first contention. After defendant was committed to Atascadero, he was transferred for custodial purposes to Vacaville, pursuant to section 6700.5 of the Welfare and Institutions Code (see In re Cathey (1961) 55 Cal.2d 679 [12 Cal.Rptr. 762, 361 P.2d 426]).
Defendant also now urges that there was an unreasonable delay from the time when he was returned to court, in October 1965, until his preliminary examination in January 1966.
Finally, defendant urges that he was denied effective representation by counsel. He was represented at the proceedings below, commencing with the motion under Penal Code, section 995, by counsel of his own choosing. On May 26, 1966, at the beginning of the third day of trial, he made a formal motion to discharge that attorney and to have the court appoint another attorney for him. The request was denied.
The request to the trial court was not merely to relieve the attorney, with defendant thereafter representing himself, but for the substitution of new counsel to continue a trial almost concluded. Since, as will appear, there had been no ineffective representation, the trial court was entirely correct in denying the motion as made to it.
The real gist of defendant's attack on his trial counsel is that the attorney did not make use of the report from the Department of Corrections to which we have referred above. But, while that document could possibly have been used to support the charge of perjury against the police officers, its presentation to the court would necessarily have opened the door for the introduction of other material which would have affected defendant adversely. And if the perjury issue had been carried forward beyond voir dire into the trial, as it undoubtedly would, the jury would have been told, out of defendant's own exhibit, the incriminating data resulting from the search of his room — thus waiving the protection which Stoner otherwise gave to him. This was a tactical decision which it was within the province of counsel to make; even with the benefit of hindsight we cannot say that he was wrong.
In summary, an examination of all the records presented to us discloses no errors at the trial and no allegations of fact sufficient, even if true, to entitle defendant to relief on habeas corpus. It follows that the judgment should be affirmed and the petition denied. It is so ordered.
Files, P.J., and Jefferson, J., concurred.
A petition for a rehearing was denied July 10, 1967, and appellant's petition for a hearing by the Supreme Court was denied September 27, 1967.
"(1) Edward Hurd Bunker violated Condition 2 of the Conditions of Parole by changing his residence without the approval of his parole agent....
"(3) Edward Hurd Bunker violated Condition 6 of the Conditions of Parole by, ... (b) failing to participate in the anti-narcotic program....
"(5) Edward Hurd Bunker violated Condition 8 of the Conditions of Parole by associating with a parolee an individual of bad reputation.
"(6) Edward Hurd Bunker violated Condition 9 of the Conditions of Parole by operating a motor vehicle without permission of his parole agent.
"(7) Edward Hurd Bunker violated Condition 10 of the Conditions of Parole by failing to cooperate with his parole agent."
In his brief on the appeal, defense counsel argues that the confessions were inadmissible because the warnings given did not meet the requirements of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. Since the trial commenced on May 24, 1966, Miranda is not applicable. (People v. Rollins (1967) 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221].)
"A I did.
"Q Are you able to tell us, sir, what if anything that vehicle contained?
"MR. WARNER: Object to that, Your Honor, upon the ground — it would be legal argument on this objection, Your Honor. May I approach the Bench? It would be rather extensive Voir Dire examination to possibly be conducted in the absence of the jury, Your Honor.
"MR. BLOOM: I will withdraw the question."
"DEFENDANT BUNKER: If that's absolutely necessary, I would accept the Public Defender over objection. I think the Public Defender's case-load is too heavy to handle cases this technical.
"THE COURT: The problem is that if I acted to employ another counsel, I would have to declare a mistrial in this case, because no counsel could come into the case as it stands now."