Petition — Marquez v. Bittaker

TPE SET neh ee ot ehh Tee a, ee EN RIC NL MRR Na vant peo GR ee A mer Re Mendy OS I He ree wena > S q

In the Supreme Court o

United States

October Term, 1978

No ss :

W8 ~ } () Q 9 ¥ICHAEL RODAK, JR., CLERW

J. MARQUEZ, Superintendent,

Petitioner,

v.

LAWRENCE S. BITTAKER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVELLE J. YOUNGER,

Attorney General of the State of California

JACK R. WINKLER,

JACK R. WINKLER, Chief Assistant

Attorney General — Criminal Division

S. CLARK MOORE,

Assistant Attorney General

NORMAN H. SOKOLOW,

; Deputy Attorney General

DONALD F. ROESCHKE,

Deputy Attorney General

HOWARD J. SCHWAB,

Deputy Attorney General

800 Tishman Building

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2212

Attorneys for Petitioner

Westside Law Publishers Santa Monica, Califomia 213/451-1714

TOPICAL INDEX

Opinions Below

Jurisdiction

Questions Presented

Statutory Provisions Involved

Statement of the Case...

Reasons on a Writ of Certiorari Should Be Granted

L

Il.

iil.

A Federal Court of One Circuit May Not

Impose a Federal Constitutional Jnterpretation

on a State Judgment in Granting Habeas Corpus

Relief Where the Courts of that State Have a

Contrary Interpretation and this Honorable

Court Has Never Ruled on the Issue

The Doctrine of a Constitutionally Based Right

of Self-Representation First Enunciated By This

Court in Faretta v. California, supra, (1975)

422 U.S. 806, Should Not Be Applied Retro-

actively .

The Denial of iastiiesatee Should Be

Subject to a Harmless Error Rule

Conclusion

17

18

ii

TABLE OF AUTHORITIES CITED

Cases Page

Arnold v. United States (9th Cir. 1969) 414 F.2d

1056, cert. denied (1970) 396 U.S. 1201 ....... 8

Buffalo Forge Co. v. Steelworkers (1976) 428 U.S.

I) SRSRRARET iAP ER ROE UN pak ae SRC HP, 7 10, 15

Butler v. United States (8th Cir. 1963) 317 F.2d 249,

cert. denied (1963) 375 U.S. 838 | ee

Chapman v. United States (5th Cir. 1977) 553 F. 2d

re acti Mh... Bhccctiavveta dita nacre 14

Curry v. Superior Court (1977) 75 Cal. App.3d 221,

RAE Go MIR Sis ccscrugdtaslsctes oa daibtigtoa ut thaardh 18

Davis v. United States (1973) 411 U.S. 233 .. 10, 15

Faretta v. California aid 422 U.S. 806 .......... 3,4

Aidsiccobvealivcss ae Toe Oe

SREP cc ees _ 14, 15, 16, 17, 18

Francis v. Henderson (1976) 425 U.S. 536 ........... 11

Halliday v. United States (1969) 394 U.S. 831 .... 16

Houston v. Nelson (C.D. Cal. 1975) 404 F. Supp.

Ne att AEE RI tn Ret Cl URS ota Nn a 6, 13

Landers v. Texas, 550 S.W.2d 272 (Tex. Cir. App.

1977) .. 14

Martin v. Wyrick (8th Cir. 1978) 568F. 24583, cert.

denied (1978) 435 U.S. 975 oo. 13, 14

Meeks v. Craven (9th Cir. 1973) 482 F.2d 465 ....... 8

Owsley v. Peyton (4th Cir. 1965) 352 F.2d 804 .. 10

People v. Bradley, 1 Cal.3d 80, 81 Cal. Rptr. 457,

SL RRR Sib pe ag 2 ace SOC 10

People v. Freeman (1977) 76 Cal. App.3d 302, 142

eee ateusitensiss 18

People v. Holcomb (1975) 395 Mich. 326, 235

SS se A ss ha oad Sana as 14

People v. Manson (Re Tate-LaBianca) 61 Cal.

App.3d 102, 132 Cal. Rptr. 265, cert. denied

ERE Tae Wee, I asics iid cabearaesorsstaccseanes 16, 18

iii

People v. Manson (Re Hinman-Shea) 71 Cal. App.3d

1, 139 Cal. Rptr. 272, cert. denied (1978) 435

U.S. 953 17,18

People v. McDaniel, 16 Cal.3d 156, 127 Cal. Rptr.

467, 545 P.2d 843, cert. denied (1976) 429

U.S. 847 8, 13, 14

People v. Sharp, 7 Cal.3d 448, 103 Cal. Rptr. 233,

499 P.2d 489, cert. denied (1973) 410 U.S. 944

6, 8

People v. Tyner (1978) 76 Cal. App.3d 352, 143

Cal. Rptr. 52 18

Ruck v. Chicago M & ST Ry. Co. (1913) 153 Wis.

158, 140 N.W. 1074 10

Scott v. State (Fla. App. 1977) 345 So.2d 414 14

Stone v. Powell (1976) 425 U.S. 465 11

United States v. Abbamonte (2d Cir. 1965) 348 F.2d

700 17

‘United States v. Dionisio (1972) 410 U.S. 1 10, 15

United States v. Healy (1964) 376 U.S. 75 3

United States ex rel. Lawrence v. Woods (7th Cir.

1970) 432 F.2d 1072, cert. denied (1971) 402

U.S. 983 10

United States v. Warner (8th Cir. 1970) 428 F.2d

730, cert. denied (1970) 400 U.S. 930 13

Wainwright v. Sykes (1977) 433 U.S. 72 11

Wichita Co. v. City Bank (1939) 306 U.S. 103 9

Younger v. Harris (1971) 401 U.S. 37 9

Statutes

28 U.S.C. § 1254(1) 3

Constitutions

United States Constitution

Art. III, Sec. I 3,8

iv

Amendment IV

Amendment VI

Amendment X

Digests

20 Am. Jur.2d, Courts, § 230, p. 560

11

4, 6, 7, 13

4,12

10

In the Supreme Court of the

United States

October Term, 1978

No.

J. MARQUEZ,

Superintendent,

Petitioner,

v.

LAWRENCE S. BITTAKER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner J. MARQUEZ, Superintendent! of the

California Correctional Institute at Tehachapi, respect-

fully prays that a writ of certiorari be'issued to review the

judgment and opinion of the United States Court of

Appeals for the Ninth Circuit entered in this habeas

corpus action on August 3, 1978, a petition for rehearing

having been denied on December 6, 1978.

‘Although J.J. Enomoto was superintendent in the course of the

lower federal court proceedings, the present superintendent is J.

Marquez.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit granting habeas corpus relief appears as

Appendix A to this petition. A copy of the Ninth Circuit’s

order denying the petition for rehearing appears as Ap-

pendix B to this petition. The order of the United States

District Court dated March 6, 1974, initially granting the

petition for writ of habeas corpus, appears as Appendix C

to this petition. The order of the United States District

Court, Central District of California, vacating judgment

dated March 19, 1974 is attached hereto as Appendix D

to this petition. The order of the United States District

Court, Central District of California, dated September 4,

1975, granting the petition for writ of habeas corpus is

attached as Appendix E to this petition.

Opinions arising out of state proceedings are as follows:

The California Court of Appeal opinion dated July 25,

1972, affirming the burglary conviction is attached as

Appendix F. The Court of Appeal order dated August 1,

1972, denying rehearing without opinion is attached as

Appendix G. The California Supreme Court order of

September 20, 1972, denying hearing without opinion is

attached as Appendix H. The order of this Honorable

Court denying certiorari as to the state proceedings

without opinion dated February 20, 1973, is attached as

Appendix I.

JURISDICTION

The judgment of the United States Court of Appeals for

the Ninth Circuit was filed on August 3, 1978. A timely

petition for rehearing along with a suggestion for rehearing

en banc was filed on August 14, 1978, the rehearing being

denied by the Ninth Circuit and the suggestion for

rehearing en banc being rejected by the Ninth Circuit on

December 6, 1978. This petition for a writ of certiorari is

filed within 90 days of that date and therefore timely filed.

(United States v. Healy (1964) 376 U.S. 75, 77-80, and

cases cited.) This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a lower federal court may impose an

interpretation of a federal constitutional issue on a state

court when the state court’s interpretation of that issue

differs from that of the particular federal court and the

United States Supreme Court has not yet spoken on that

issue?

2. Whether the doctrine announced in Faretta v.

California (1975) 422 U.S. 806, setting forth a federal

constitutional right of self-representation should be ap-

plied retroactively?

3. Whether the denial of self-representation should be

subject to a harmless error rule?

STATUTORY PROVISIONS INVOLVED

Article III, section 1 of the United States Constitution

reads:

“The judicial power of the United States, shall

be vested in one Supreme Court, and in such

inferior courts as the Congress may from time to

time ordain and establish. The Judges, both of

the Supreme and Inferior Courts, shall hold their

offices during good behavior, and shall, at stated

times, receive for their services, a compensation,

which shall not be diminished during their con-

tinuance in office.”

The Sixth Amendment to the United States Con-

stitution reads:

“In all criminal prosecutions, the accused shall

enjoy a speedy and public trial, by an impartial

jury of the State and district wherein the crime

shall have been committed, which district shall

have been previously ascertained by law, and to

be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.”

The Tenth Amendment to the United States Constitu-

tion reads:

“The powers not delegated to the United

States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively,

or to the People.”

STATEMENT OF THE CASE

Petitioner J. MARQUEZ, Superintendent, seeks a writ

of certiorari to have this Court review the decision of the

United States Court of Appeals for the Ninth Circuit

affirming the grant of a conditional writ of habeas corpus.

As noted in the Ninth Circuit opinion (Appendix A), the

case involved one Lawrence S. Bittaker, who was con-

victed in the California court on a charge of burglary some

four years before the decision of Faretta v. California

supra, 422 U.S. 806, which sets forth a constitutional

right of self-representation in a criminal prosecution.

Bittaker, hereinafter referred to as respondent, “brought

habeas corpus before Faretta” (Appendix A, p. 20). Re-

spondent had appealed his conviction of burglary to the

California Court of Appeal, which affirmed his conviction

5

on July 25, 1972, holding that his denial of self-represen-

tation was harmless as it was not a Federal constitutional

right. (Appendix F, pp. 39-44.) The Court of Appeal

denied rehearing on August 1, 1972, and the California

Supreme Court denied hearing on September 20, 1972.

(Appendix G and H.) On February 20, 1973, this

Honorable Court denied certiorari. (Appendix I.) It was

not until June 30, 1975, that this Honorable Court for the

first time recognized a constitutional right of self-represen-

tation in Faretta v. California (1975) 422 U.S. 806.

Respondent had sought relief in the United States

District Court, Central District of California, on the

grounds that he was denied the opportunity to represent

himself in the above criminal action. The United States

District Court, in an order dated March 6, 1974, condi-

tionally granted a petition for writ of habeas corpus

concurring in and adopting the findings and conclusions of

the report and recommendations of the United States Ma-

gistrate who had applied the Ninth Circuit standards

regarding self-representation to California state convic-

tions by means of habeas corpus. (Appendix C, pp. 29,

30.)

However, on March 19, 1974, the United States

District Court for the Central District of California issuec!

an order vacating its judgment. (Appendix D.) On Sep-

tember 4, 1975, the United States District Court, Central

District of California, issued an order conditionally grant-

ing the petition for writ of habeas corpus in light of Faretta

v. California supra, 422 U.S. 806. (Appendix E.)

Petitioner appealed to the Ninth Circuit (Appendix A, p.

20). The Ninth Circuit affirmed the granting of the petition

for writ of habeas corpus stating that the court would not

have to reach the issue of the retroactivity of the Faretta

doctrine because the law of the circuit at the time of

respondent’s state court trial provided for a constitutional

right of self-representation. (Appendix A, pp. 20, 21.)

Thus, the court held that even though the California courts

had denied there was a right of self-representation before

Faretta (People v. Sharp 7 Cal.3d 448, 103 Cal. Rptr.

233,499 P.2d 489, cert. denied (1973) 410 U.S. 944), the

Ninth Circuit rule setting forth a constitutional right of

self-representation was to be applied to California judg-

ments. (Appendix A, pp. 20, 21.) The opinion of the Ninth

Circuit recognized that the conceptual basis of the Ninth

Circuit ruling regarding self-representation was that of a

counterpart to the right of counsel which was different than

that of Faretta, which found the right of self-representa-

tion implied in the structure of the Sixth Amendment.

(Appendix A, pp. 21, 22.) The court held even though

there was a conceptual difference between the Ninth

Circuit rule regarding self-representation and Faretta, that

the rule of that circuit was still binding on California

judgments before the Faretta opinion came down, in effect

describing the conceptual difference as a “‘verbal minuet.”’

(Appendix A, p. 22.) The opinion also held that the

harmless error rule could never be applied to Faretta

error. (Appendix A, p. 22.)

Furthermore, the decision of the Ninth Circuit over-

ruled a United States Court, Central District of California,

decision which held Faretta not to be retroactive, namely,

Houston v. Nelson (C.D. Cal. 1975) 404 F.Supp. 1108,

1115. (Appendix A, p. 21 fn.1.) Additionally, the opinion

of the Circuit Court criticized petitioner’s argument on the

issue of retroactivity to the effect that one of the California

prisoners who may benefit from the Faretta decision was

Charles Manson. (Appendix A, p. 22 fn.2.) Thus the

Ninth Circuit affirmed the granting of the petition for writ

of habeas corpus to an individual who had requested self-

representation and who had been convicted some four

years before the Faretta decision came down; also, the

Ninth Circuit denied a timely petition for rehearing by the

State of California and rejected a timely suggestion for

rehearing en banc on December 6, 1978.

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

A FEDERAL COURT OF ONE CIRCUIT MAY

NOT IMPOSE A FEDERAL CONSTITUTIONAL

INTERPRETATION ON A STATE JUDGMENT

IN GRANTING HABEAS CORPUS RELIEF

WHERE THE COURTS OF THAT STATE HAVEA

CONTRARY INTERPRETATION AND THIS

HONORABLE COURT HAS NEVER RULED ON

THE ISSUE

The Court of Appeals for the Ninth Circuit in its opinion

has imposed an interpretation, contrary to that of the

California Supreme Court, of a federal constitutional issue

on a final’ judgment rendered by the State Courts of

California. The issue before the Ninth Circuit was the

retroactivity or nonretroactivity of the doctrine set forth

for the first time by the United States Supreme Court in

Faretta v. California (1975) 422 U.S. 806, namely, that a

defendant had a right of self-representation under the Sixth

Amendment of the Federal Constitution. However, instead

of the court reaching that important issue which was

briefed by the parties, it determined that, “. . . it is not

necessary to reach that question because the law of this

Circuit at the time of Bittaker’s state court trial had already

been established in a fashion consistent with the Supreme

Court’s statement of the law in Faretta .. . ” (Citations

omitted; Appendix A, p. 20.)

Before Faretta, California held specifically that there

was no federal constitutional right to self-representation in

People v. Sharp 7 Cal.3d 448, 103 Cal. Rptr. 233, 499

P.2d 489, cert. denied (1973) 410 U.S. 944. Before

Faretta, the Ninth circuit held there was a constitutional

right to self-representation in Arnold v. United States (9th

Cir. 1969) 414 F.2d 1056, 1058, cert. denied (1970) 396

U.S. 1021, based upon the theory that self-representation

was based upon a correlative right to that of counsel, a

theory specifically rejected in the Faretta decision.”

(Faretta v. California supra, 422 U.S. 806, 819, 820

fn.15.) California held Faretta not to be retroactive in

People v. McDaniel 16 Cal.3d 156, 127 Cal. Rptr. 467,

545 P.2d 843, cert. denied (1976) 429 U.S. 847.

The issue now raised is whether or not a federal court of

one circuit can impose a federal constitutional interpreta-

tion on a state judgment by means of habeas corpus even

though the courts of that state have a contrary constitu-

tional interpretation, and this Honorable Court has not yet

decided the issue. The policy consideration is made

manifest by Article III, section 1, of the United States

Constitution itself which gives this Honorable Court

independent existence by reason of constitutional man-

?In this regard, it should be noted that the Ninth Circuit in a pre-

Faretta decision, Meeks v. Craven (9th Cir. 1973) 482 F.2d 465,

467, cited the Sharp decision for the proposition that a trial judge

should not be presented with the impossible situation of the conflict

between the right of counsel and self-representation. Judge Trask in a

concurring opinion described the difference in the California Sharp

rule and the Ninth Circuit’s rule regarding the constitutional status of

self-representation as being “partially semantic.” (Meeks v. Craven

supra, at pp. 468-469.)

date but which also makes the lower federal courts

creations of Congress. This is a key issue involving the

delicate relationship between federal and state courts

which is grounds alone to grant the within petition.

(Wichita Co. v. City Bank (1939) 306 U.S. 103, 106-

107.)

The effect of the opinion of the Ninth Circuit has thrust

upon California for the first time pre-1975 standards of

that circuit of self-representation which in effect were not

defined as equivalent to the rights under Faretta until the

opinion of the Court of Appeals in this case. Such a

method of analysis is contrary to the body of law which

had existed in California regarding the nature of self-

representation and retroactivity and instead imposes

retroactivity for the first time on a new standard disruptive

of the criminal justice system of California. Furthermore, it

does so by the mechanics of the application of Ninth

Circuit pre-Faretta law to state judgments for the first time

over three years after Faretta was decided. Thus not only

has the Ninth Circuit imposed its pre-Faretta standards on

California judgments, it has also done so for the very first

time years after the Faretta decision was rendered.

(Appendix A, p. 20.)

The foregoing interpretation of the right to self-repre-

sentation greatly impedes the concept of comity contrary

to the policy set forth by this Court in Younger v. Harris

(1971) 401 U.S. 37, 53. This analysis precludes Califor-

nia from litigating the central issue of retroactivity of the

Faretta decision while in effect imposing the standards of

Faretta retroactively. The policy favoring finality of

judgment is impeded, because final convictions, such as

the one in this case, in which review had even been sought

and denied by this Honorable Court, can be swept aside

years later by differing lower Federal court constitutional

10

interpretations. The question is clearly raised as to

whether or not the judgment of California or other states

may be set aside by interpretations of the Federal

Constitution by lower federal courts of one circuit when

the United States Supreme Court has not spoken on the

issue. An important policy is uniformity of decisions

among the circuits. The opinion of the Ninth Circuit in this

case in effect binds the California courts to its interpreta-

tion of the Federal Constitution, regardless of whether or

not California decisional law is to the contrary. This effect

comes about because the California federal constitutional

interpretations are of no real binding accord if state

judgments can be mechanically set aside by means of

federal habeas corpus because of a different interpretation

by the Ninth Circuit.

It has been held in other jurisdictions that state courts

are not bound by the decisions of lower federal courts

regarding the interpretation of federal constitutional is-

sues. (United States ex rel. Lawrence v. Woods (7th Cir.

1970) 432 F.2d 1072, 1075-1076, cert. denied (1971)

402 U.S. 983; Owsley v. Peyton (4th Cir. 1965) 352 F.2d

804, 805; People v. Bradley 1 Cal.3d 80, 86, 81 Cal. Rptr.

457, 460 P.2d 129.) Note especially the discussion

delineating the conflict among state courts in 20 Am. Jur.

2d Courts § 230, p. 560; see also 21 C.J.S., Courts §

206, pp. 377-378; Ruck v. Chicago M&ST Ry. Co.

(1913) 153 Wis. 158, 140 N.W. 1074, 1076 (holding that

state courts can never be bound by lower federal court

decisions when they are in conflict).) The fact that the

decision of the Ninth Circuit is in conflict with foregoing

cited opinions on this most crucial issue is a ground in and

of itself for the granting of certiorari in this case. (Buffalo

Forge Co. v. Steelworkers (1976) 428 U.S. 397, 404;

Davis v. United States (1973) 411 U.S. 233, 236; United

States v. Dionisio (1972) 410 U.S. 1, 5.)

1]

In the recent opinions of this Court, there has been a

strong trend to minimize the interference of federal courts

in state proceedings. (Wainwright v. Sykes (1977) 433

U.S. 72, 87; Stone v. Powell (1976) 428 U.S. 465, 481,

482, 494; Francis v. Henderson (1976) 425 U.S. 536,

541, 542.) Inthe Wainwright and Francis decisions, this

Court held that a defendant must follow state procedural

rules in making proper objections in order to raise federal

issues under federal habeas corpus. In Stone v. Powell

supra, 428 U.S. 465, 481, 482, 494, this Court held that if

the state provides opportunities for full and fair litigation of

the Fourth Amendment rights, then there is no necessity

for federal habeas corpus relief. This should be especially

true when the “right” accorded by a lower Federal court

does not go to guilt or innocence but rather is an attempted

vindication of unrelated policies whether it be the exclu-

sionary rule or self determination by means of self-

representation.

In the same manner, it is urged that, when state courts

provide opportunity for full and fair litigation of federal

issues, the interpretation of the state courts on those

federal issues should be binding on that particular state

without lower federal court interference even if the lower

federal courts’ interpretations of federal constitutional

issues are different from that of the state courts. Rather, a

state court should only be bound by a federal court

interpretation of constitutional law when that court is the

United States Supreme Court. Federal habeas corpus

would still vindicate constitutional rights in state judg-

3In the same regard the issue of self-representation should never, by

reason of comity, be cognizable on Federal habeas corpus where the

state provides opportunities for full and fair litigation of the issue since

it (self-representation) does not go to the issue of guilt and innocence.

(See Stone v. Powell supra, 428 U.S. 465, 481, 482.)

12

ments only when these rights have already been recog-

nized by this Honorable Court. However, habeas corpus

would not apply to rights recognized only by lower federal

courts, especially when in conflict with state courts. To do

otherwise would allow the individual circuits to impose

their interpretation of federal matters upon the states

within their jurisdiction even though those circuits them-

selves may be in conflict. This would mean that the

conflicting circuits could cause disparate interpretations

among their various jurisdictions so that a state may be

forced to follow an incorrect interpretation of federal law

not yet ruled upon by this Honorable Court. This could be

true in spite of an individual state court’s interpretation to

the contrary. Rather, in the interest of comity and to allow

States to fulfill their own destinies, no lower federal court

interpretations of constitutional law should be binding on

the state court in the absence of any United States

Supreme Court decision on that point. Thus the policy

enunciated in the Tenth Amendment to the Federal

Constitution relative to delegating powers not enunciated

in the Consitution to the states would be fulfilled.

The Ninth Circuit accurately, in its opinion, notes that it

had never before applied self-representation to state

habeas corpus petitioners. (Appendix A, p. 20.) Thus the

Court of Appeals is forcing upon California its prior

decisions arising out of federal prosecutions to which the

State was never a party litigant. Nevertheless the State

would be in effect bound by their pronouncements on self-

representation though contrary to California Supreme

Court rulings. Lower federal courts should not be able to

affect state judgments when the state has not been given

the opportunity to litigate important constitutional in-

terpretations.

13

What is especially problematic in this case, is that the

conceptual underpinnings of self-representation in the

Ninth Circuit, the “‘correlative right to counsel theory,”

was, as stated before, rejected expressly in Faretta v.

California supra, at p. 820 fn.15, which found the right in

the structure of the Sixth Amendment itself. Yet the Court

of Appeals applies its pre-Faretta holding of law to

California judgments, in effect describing the admittedly

disparate conceptual bases as a “verbal minuet.” (Appen-

dix A, p. 22.)

In this regard it should be noted that the Eighth Circuit

in United States v. Warner (8th Cir. 1970) 428 F.2d 730,

733, cert. denied (1970) 400 U.S. 930, held the right to

self-representation to be of constitutional dimension,

although they had prior in Butler v. United States (8th Cir.

1963) 317 F.2d 249, 258, cert. denied (1963) 375 U.S.

838, held that such a right was purely statutory. Yet even

in light of the Warner decision, the Eighth Circuit refused

to hold the Faretta decision retroactive to the state courts

in Martin v. Wyrick (8th Cir. 1978) 568 F.2d 583,

wherein this Court denied certiorari in (1978) 435 U.S.

975.

Of interest is the fact that the Eighth Circuit in Martin

held Faretta not retroactive citing as its authority the

California Supreme Court case of People v. McDaniel

supra, 16 Cal.3d 156, 127 Cal. Rtpr..467, 545 P.2d 843,

cert. denied (1976) 429 U.S. 847, which case also held

that the Faretta doctrine should not be applied retroactive-

ly. (Martin v. Wyrick supra, at p. 587.) Furthermore, the

Martin court cited Houston v. Nelson (C.D. Cal. 1975)

404 F.Supp. 1108, 1115, a district court opinion in the

Ninth Circuit jurisdiction holding Faretta non-retroac-

tive. (Martin v. Wyrick supra, at p. 588.) The Ninth

Circuit undertook to overrule the Houston decision in

14

their opinion. (Appendix A, p. 21 fn.1.)

As such, the rule set forth in the Ninth Circuit before

Faretta should not now be held operable to California

judgments and be a means of Federal habeas relief.

THE DOCTRINE OF A CONSTITUTIONALLY

BASED RIGHT OF SELF-REPRESENTATION

FIRST ENUNCIATED BY THIS COURT IN

FARETTA V. CALIFORNIA SUPRA, (1975) 422

U.S. 806, SHOULD NOT BE APPLIED RETRO-

ACTIVELY

It is strongly urged that certiorari should be granted to

determine the issue of whether or not the doctrine of a

Federal constitutional right to self-representation an-

nounced for the first time by this Court in Faretta v.

California supra, should be applied retroactively to the

date of its rendition, June 30, 1975.

There is a strong split of authority on this most crucial

point. California, in People v. McDaniel supra, 16 Cal.3d

156, 127 Cal. Rptr. 467, 545 P.2d 843, cert. denied

(1976) 429 U.S. 847; Florida, in Scott v. State (Fla.App.

1977) 345 So.2d 414, 417; and the Eighth Circuit in

Martin v. Wyrick supra, (8th Cir. 1978) 568 F.2d 583,

587, have held that the doctrine announced in Faretta

should not be held retroactively.

On the other hand, the Supreme Court of Michigan in

People v. Holcomb (1975) 395 Mich. 326, 235 N.W.2d

343, 347, fn.7, and the Texas court in Landers v. Texas

550 S.W.2d 272, 275 (Tex. Cir. App. 1977) held the

Faretta doctrine to be retroactive; the Fifth Circuit in

Chapman vy. United States (Sth Cir. 1977) 553 F.2d 886,

889, 890, held the Faretta doctrine to be retroactive to the

15

federal courts; and now the Ninth Circuit in this decision

has held the doctrine of self-representation to be applied

retroactively to the date of Faretta, basing it upon the prior

decisions of the Ninth Circuit. Such an important issue

should be grounds for the granting of certiorari. (Buffalo

Forge Co. v. Steelworkers supra, (1976) 428 U.S. 397,

404; Davis v. United States supra, (1973) 411 U.S. 233,

236; United States v. Dionisio supra (1972) 410 U.S. 1,

5.)

It is urged that the decision in Faretta itself should be

sufficient grounds for nonretroactive application. Justice

Stewart writing for the majority noted that the question of

whether or not there was a constitutional right to self-

representation was, “not an easy question.” (Faretta v.

California supra, 422 U.S. 806, 807.) In addition, Justice

Stewart aptly stated at pages 832 and 833 of the Faretta

decision:

“There can be no blinking the fact that the

right of an accused to conduct his own defense

seems to cut against the grain of this Court’s

decisions holding that the Constitution requires

that no accused can be convicted and imprisoned

unless he has been accorded the right to the

assistance of counsel. For it is surely true that

the basic thesis of those decisions is that the help

of a lawyer is essential to assure the defendant a

fair trial. And a strong argument can surely be

made that the whole thrust of those decisions

may inevitably lead to the conclusion that a State

may constitutionally impose a lawyer upon even

an unwilling defendant.” (Citations and footnote

omitted. )

Of equal importance is the fact that the Faretta decision

was not a unanimous opinion but had three dissenting

16

votes, those being of Chief Justice Burger, Justice Black-

mun and Justice Rehnquist. Furthermore, Justice Black-

mun, at page 852 of his dissenting opinion, listed close to a

whole page of questions that would have to be answered

for the first time because of Faretta’s holding that there

was a federal constitutional right of self-representation.

In addition, the three-prong criteria of, ‘*( 1) the purpose

of the new rule; (2) the extent of reliance upon the old rule;

and (3) the effect retroactive application would have upon

the administration of justice’”’ would mandate nonretro-

active application of the Faretta decision. (See Halliday

v. United States (1969) 394 U.S. 831, 832.)

The purpose of the rule in Faretta was not to enhance

the reliability of the truth determining or fact finding

process but instead was an attempt to vindicate self-

determination. In addition, the decision in Faretta was the

first time that this Court for almost two centuries had taken

any firm position on the question of self-representation so

that California could justifiably rely on its own constitu-

tional decisional law albeit contrary to the decision later

announced in Faretta.

Thirdly, the effect of the administration of justice in

California could potentially be catastrophic. Recent cases

in addition to those included on a list in the appendix of the

Brief for the Petitioner in the Faretta case, reflect

California’s reliance on the old rule and involve some very

lengthy murder trials. For example, it should be noted that

Faretta was not held to be retroactive in answer to Charles

Manson’s contentions that he was denied the right to

represent himself in both of his appeals arising out of his

convictions for the Tate-LaBianca murders in People v.

Manson 61 Cal. App.3d 102, 172, 132 Cal. Rptr. 265,

317, cert. denied (1977) 430 U.S. 986, and those

17

involving the Hinman-Shea murders in People v. Manson

71 Cal. App.3d 1, 50, 139 Cal. Rptr. 275, 302, 303, cert.

denied (1978) 435 U.S. 953.

In footnote two of its opinion, (Appendix A, p. 22) the

Court of Appeals criticizes the State for mentioning

several times that one of the prisoners who may benefit

from the Faretta decision is Charles Manson. However,

the state under the three-prong retroactivity test must

discuss the effect retroactive application would have upon

the administration of justice within its borders. The fact

that Charles Manson and others (whether notorious or

not) could possibly benefit if there is retroactive applica-

tion of the Faretta rule is of legitimate concern to the State

of California as regards the effect retroactivity would have

upon the administration of justice within its borders.

As such, certiorari should be granted on this major

issue.

Ill

THE DENIAL OF SELF-REPRESENTATION

SHOULD BE SUBJECT TO A HARMLESS ERROR

RULE

The Court of Appeals, for the Ninth Circuit, held that

error under Faretta could never be harmless even though

they concede that, “ . . . Some defendants may be able to

show prejudice from the assistance of unwanted coun-

sel...” (Appendix A, p. 22.) It has been held there is no

showing of prejudice by reason of the denial of self-

representation. (See United States v. Abbamonte (2nd

Cir. 1965) 348 F.2d 700, 704.) In Faretta Justice Stewart

did comment, “It is undeniable that in most criminal

prosecutions defendants could better defend with coun-

sel’s guidance than by their own unskilled efforts.”

18

(Faretta v. California supra, 422 U.S. at p. 836.) In fact

Justice Blackmun at page 852 of his dissent notes that one

of the questions that must be answered is, “May a

violation of the right to self-representation ever be harm-

less error?”

In fact the California intermediate appellate courts are

divided on the issue of whether or not denial of self-

representation can ever be harmless error. (See People v.

Manson supra, 71 Cal. App.3d 1, 50, 139 Cal. Rptr. 275,

303; and People v. Manson supra, 61 Cal. App.3d 102,

172, 132 Cal. Rptr. 265, 317, implying that the harmless

error rule can exist in the case of self-representation, and

to the contrary see People v. Tyner (1978) 76 Cal.

App.3d 352, 355, 143 Cal. Rptr. 52, 53, 54; People v.

Freeman (1977) 76 Cal. App.3d 302, 308, 142 Cal. Rptr.

806, 809, 810; and Curry v. Superior Court (1977) 75

Cal. App.3d 221, 229, 141 Cal. Rptr. 884, 888, 889.

As such, it is urged that the harmless error rule should be

applicable to Faretta error.

CONCLUSION

For the foregoing reasons, petitioner submits that a writ

of certiorari should issue and review the decision of the

United States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General of the State of California

JACK R. WINKLER, Chief Assistant,

Attorney General — Criminal Division

S. CLARK MOORE,

Assistant Attorney General

NORMAN H. SOKOLOW,

Deputy Attorney General

DONALD F. ROESCHKE,

Deputy Attorney General

HOWARD J. SCHWAB,

Deputy Attorney General

Attorneys for Petitioner

APPENDIX

——

19

United States Court of Appeals

for the Ninth Circuit

LAWRENCE S. BITTAKER,

Petitioner-Appellee,

v.

J.J. ENOMOTO,

Respondent-Appellant.

No. 75-3419

OPINION

Appeal from the United States District Court

for the Central District of California

Before: MERRILL, GOODWIN and TANG, Circuit

Judges

GOODWIN, Circuit Judge:

Lawrence S. Bittaker was convicted in a California

Court on a charge of burglary some four years before

Faretta v. California, 422 U.S. 806 (1975), confirmed to

defendants in state prosecutions the constitutional right of

self-representation earlier recognized in federal courts.

APPENDIX A

20

Bittaker brought habeas corpus before Faretta. The

district court held after Faretta that the state’s denial of

Bittaker’s right of self-representation was a federal consti-

tutional defect requiring the setting aside of his state

conviction. The state appeals; we affirm.

While the parties have briefed and argued the case in

terms of the “‘retroactivity” of Faretta, it is not necessary

to reach that question because the law of this circuit at the

time of Bittaker’s state court trial had already been

established in a fashion consistent with the Supreme

Court’s statement of the law in Faretta. Arnold v. United

States, 414 F.2d 1056, 1058 (9th Cir. 1969), cert. denied,

396 U.S. 1021 (1970); Bayless v. United States, 381

F.2d 67, 71 (9th Cir. 1967). This circuit had stated in

federal cases that self-representation was a corollary of the

Sixth Amendment right to counsel. Because the defendant

could waive his Sixth amendment right, we said he could

also insist on self-representation as a constitutional, as

well as a statutory, right. Until now, we have had no

occasion to apply the federal constitutional right to state

habeas petitioners. The Second Circuit, however, had

done so, United States ex rel. Maldonado v. Denno, 348

F.2d 12, 15 (2d Cir. 1965). We avoided the question in

Meeks v. Craven, 482 F.2d 465, 466 (9th Cir. 1973),

because the petitioner’s assertion of the right was inade-

quate.

There can be little doubt, however, that, if squarely

faced with the issue, we would have applied the right to

self-representation to a state habeas petitioner.

We had already characterized the right as a constitu-

tional one in Arnold v. United States, 414 F.2d at 1058.

The Supreme Court had previously applied virtually the

entire Sixth Amendment to the states. Duncan v. Louisi-

ana, 391 U.S. 145, 148 (1968); Gideon v. Wainwright,

21

372 U.S. 335 (1963). Accordingly there was no obvious

reason to refuse to apply the implied Sixth Amendment

right to self-representation as well.! We therefore agree

with the district court that Bittaker would have been

entitled to habeas relief had he sought it under the pre-

Faretta \aw of this circuit.

The state emphasizes that Faretta has somewhat

different conceptual basis from our prior holdings. The

Supreme Court held that the right to self-representation is

implied in the structure of the Sixth Amendment. We had

expressed it as a counterpart to the right to counsel.

According to the state, the conceptual distinction makes

our previous cases irrelevant. We disagree. Before Faretta

a state defendant in this circuit had a federal constitutional

right to self-representation. After Faretta the right was the

same, whether or not its rationale was expressed in the

same terms. The state would have us tell Bittaker that even

though he had the same right before Faretta as prisoners in

other circuits have since, we must refuse relief because the

Supreme Court used different words than we had used in

‘Before Faretta, California courts denied that there was such a

right. People v. Sharp, 7 Cal.3d 448, 499 P.2d 489, 103 Cal. Rptr.

233, cert. denied 410 U.S. 944 (1973). A district court used this fact

to deny habeas relief in Houston v, Nelson, 404 F. Supp. 1108, 1115

(C.D. Cal. 1975). The district court noted that before Faretta the

Ninth Circuit and California had different rules, and it therefore

applied the California standard to a state habeas petitioner. This

decision was never reviewed by this court. Federal courts must apply

federal constitutional law in cases properly before them under the

federal habeas statute. Sesser v. Gunn, 529 F.2d 932, 934-35 (9th

Cir. 1976). It is thus a district court’s duty to apply the law of the

appropriate circuit to all persons presenting claims within its jurisdic-

tion. State interpretations of the federal constitution and laws are

persuasive authority, but a district court may consider them on federal

questions only if the question is otherwise open.

22

justifying that right. We will not engage in such a verbal

minuet.

Finally, the state argues that we should apply the

harmless-error doctrine to denials of the right of self-

representation.? Again, we disagree.

Before Faretta we had held that the defendant need not

show prejudice resulting from the denial of the right.

United States v. Price, 474 F.2d 1223, 1227 (9th Cir.

1973). The Supreme Court vacated the judgment in

Faretta without considering possible prejudice to the

defendant. 422 U.S. at 836. Indeed, it noted that in most

cases a defendant’s case will suffer if he or she asserts the

right. 422 U.S. at 834. Some defendants may be able to

show prejudice from the assistance of unwanted counsel,

but we will not speculate on the volume of such cases. To

require such a showing could make the right to conduct

one’s own defense virtually unenforceable on appeal in the

majority of cases.

The purpose of the right is to protect the defendant’s

personal autonomy, not to promote the convenience or

efficiency of the trial. 422 U.S. at 834. Thus, a denial of

the right automatically prejudices the defendant’s freedom

interest. More is unnecessary. We do not reach other

arguments urged in support of the judgment below.

Affirmed.

>The state mentions several times that one of its prisoners who may

benefit from the Faretta decision is Charles Manson. We do not

encourage this type of advocacy. A federal court must make its

decisions in accord with the Consititution and the laws, without regard

to the notoriety of parties or non-parties.

-@

23

United States Court of Appeals

for the Ninth Circuit

LAWRENCE S. BITTAKER,

Appellee,

v.

J.J. ENOMOTO,

Superintendent,

Appellant.

No. 75-3419

ORDER

Appeal fiom the United States District Court

for the Central District of California

Before: MERRILL, GOODWIN, and TANG, Circuit

Judges.

On August 14, 1978, appellant filed its petition for

rehearing and suggestion for rehearing en banc.

The panel as constituted in the above case has voted to

deny the petition for rehearing and to reject the suggestion

for rehearing en banc.

APPENDIX B

24

The full court has been advised of the suggestion for en

banc rehearing, and no judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed. R.

App.P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

25

United States District Court

Central District of California

LAWRENCE S. BITTAKER,

Petitioner,

J.J. ENOMOTO,

Superintendent,

Respondent.

Civil No. 73-1021-RJK(T)

ORDER CONDITIONALLY

GRANTING PETITION FOR

WRIT OF HABEAS CORPUS

Pursuants to 28 U.S.C. § 636(b}(3), attached is the

report and recommendation of the United States Magis-

trate. who has reviewed the petition filed herein for

issuance of a writ of habeas corpus.

The Court has reviewed the petition and the attached

report and recommendation, and concurs with and adopts

the findings and conclusions of the Magistrate.

APPENDIX C

26

IT IS ADJUDGED as follows:

1. The petitioner was convicted in violation of the

constitution of the United States.

2. The petitioner is entitled to issuance of a writ of

habeas corpus from this court.

_ IT IS ORDERED that a writ will issue unless the

respondent and the State of California shall, within sixty

(60) days from the date this judgment becomes final,

institute proceedings for a new trial.

IT 1S FURTHER ORDERED that the Clerk will serve

copies of this order, by United States mail, on the

petitioner, on the Attorney General of the State of

California, and on the Presiding Judge, Los Angeles

County Superior Court.

DATED: March 6, 1974.

ROBERT J. KELLEHER

United States Ditrict Judge

. ee ee

27

United States District Court

Central District of California

LAWRENCE S. BITTAKER,

Petitioner,

J.J. ENOMOTO,

Superintendent,

Respondent.

Civil No. 73-1021-RJK(T)

REPORT AND RECOMMENDATION

OF MAGISTRATE

This report and recommendation, is submitted to the

Honorable Robert J. Kelleher, United States District

Judge, pursuant to the provisions of 28 U.S.C. § 636(b)

(3) and General Order No. 104 of the United States

District Court for the Central District of California.

On May 8, 1973, the petitioner, a California state

prisoner, was permitted to file his petition for writ of

habeas corpus, in forma pauperis, pursuant to 28 U.S.C.

§ 1915(a),

28

The petitioner states he was sentenced under the

California Indeterminate Sentence Law, by the Los

Angeles County Superior Court, after conviction for

violation of section 459 of the California Penal Code

(burglary).

On July 10, 1973, J.J. Enomoto was ordered substitu-

ted as respondent in place of D.J. McCarthy.

A return was ordered and filed. The petitioner filed a

traverse,

It appears that the petitioner had been released on

parole, since he lists 1723-4 North Wilcox Avenue,

Hollywood, California 90028 as his current address.

Petitioner's grounds for relief were as follows:

1. The denial of petitioner's motion to represent himself

violates California and federal constitutional law.

2. The petitioner was not effectively represented by trial

counsel,

The Magistrate has examined the unpublished opinion

of the California Court of Appeal, attached herewith as

Exhibit A; the clerk’s transcript; and the reporter's

transcript,

The petitioner has exhausted state remedies. All of the

grounds raised herein were considered by the California

Court of Appeal. Hearing was denied by the California

Supreme Court, and the United States Supreme Court

denied certiorari.

The petitioner's claim that he was denied effective

representation by counsel is without merit. The record

discloses that defense counsel strenuously cross-examin-

ed the prosecution witnesses, presented evidence in

defendant's behalf, and argued the merits of the case. The

trial judge complimented counsel on his skill and discre-

29

tion (Rptr. Tr. p. 108). The services of counsel did not

approach “a farce or mockery of justice.” Grove v.

Wilson, 368 F.2d 414, 416 (9th Cir. 1966). It has been

clearly held that ‘*|d]ue process does not require ‘errorless

counsel,’ ..."’ Brubaker v. Dickson, 310 F.2d 30, 37 (9th

Cir. 1962).

Respondent has argued that the denial of petitioner's

motions to represent himself did not violate either Califor-

nia or federal constitutional rights. In considering this

question, the California Court of Appeal found that the

trial court judge erred in denying petitioner the right to

represent himself “solely on the ground that he lacked

legal training.’ However, citing People v. Sharp, 7 Cal.3d

448 (petition for certiorari denied February 22, 1973), the

Court of Appeal found that there was no requirement to

reverse the judgment since there had been no miscarriage

of justice. The Sharp case clearly expressed the holding

that an erroneous denial of the right of self-representation

would not impair the fairness of a trial without a showing of

prejudice. The Court also noted that there was no direct

ruling by the United States Supreme Court as to whether

there is in fact a federal constitutional right to self-

representation, The California Supreme Court relied on

Singer v. United States, 380 U.S. 24 at 34-35 (1965).

“The ability to waive a constitutional right does not

ordinarily carry with it the right to insist upon the opposite

of that right.”

However, the latest ruling from the Ninth Circuit Court

of Appeals expresses a contrary holding. In Arnold vy.

United States, 414 F.2d 1956, 1058 (9th Cir. 1969), cert.

denied, 396 U.S. 1021 (1970), the Court stated as

follows:

‘A defendant in a criminal case not only has a

constitutional right to the assistance of counsel,

he has a correlative constitutional right to refuse

the advice or interference of counsel and to

present his own case. A court has no more right

to force an attorney on a defendant than it has to

ignore the Sixth Amendment right to counsel.”

In a recent case, the Ninth Circuit Court of Appeals

concluded that the right to proceed pro se has a constitu-

tional basis and the defendant need not show prejudice in

order to secure reversal of a conviction. United States v.

Price, 474 F.2d 1223 (9th Cir. 1973). There is, therefore,

a line of cases in the Ninth Circuit holding that the right to

proceed pro se is of constitutional dimensions, Arnold y.

United States, 414 F.2d 1056, 1058 (9th Cir, 1969), cert.

denied, 396 U.S. 1021 (1970); Bayless v. United States,

381 F.2d 67, 71 (9th Cir. 1967). The lastest holding

indicates that a lack of ability on the part of the defendant

to represent himself is insufficient in itself to justify a

denial.

In view of the foregoing case law in this circuit, it

appears that the petitioner is entitled to issuance of a writ

of habeas corpus. It is therefore recommended that an

order be issued by the Court granting the petition.

DATED: November 9, 1973.

VENETTA S. TASSOPULOS

UNITED STATES MAGISTRATE

31

United States District Court

Central District of California

LAWRENCE 5S. BITTAKER,

Petitioner,

J.J. ENOMOTO,

Superintendent,

Respondent.

Civil No, 73-1021-RJK(T)

ORDER VACATING

JUDGMENT

Pursuant to 28 U.S.C, § 2241, this Court, in its order of

March 8, 1974, conditionally granted a petition for writ of

habeas corpus in the above-entitled case. Now, on the

Court’s own motion and pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure,

IT IS ORDERED that the order heretofore entered

herein be and the same hereby is set aside.

APPENDIX D

32

IT IS FURTHER ORDERED that the petition for writ

of habeas corpus in the above-entitled matter is again

taken under submission by this court.

IT 1S FURTHER ORDERED that the Clerk will serve

copies of this order, by United States mail, on the

petitioner, on the Attorney General of the State of

California, and on the Presiding Judge, Los Angeles

County Superior Court.

DATED: March 19, 1974.

ROBERT J. KELLEHER

United States District Judge

eS

33

United States District Court

Central District of California

LAWRENCE S. BITTAKER,

Petitioner,

J.J. ENOMOTO,

Superintendent,

Respondent.

Civil No. 73-1021-RJK(T)

ORDER CONDITIONALLY

GRANTING PETITION FOR WRIT

OF HABEAS CORPUS

On March 7, 1974, this Court entered an order

conditionally granting Lawrence S. Bittaker’s petition for

a writ of habeas corpus. Thereafter, on March 19, 1974,

this Court, on its own motion, in light of Faretta v.

California, ___. U.S.____ 95'-« S.Ct. 2525 (1975), then

pending before the Supreme Court, set aside its order

conditionally granting the petition and took the matter

under submission.

APPENDIX E

34

In light of Faretta, this Court has reviewed the petition

and the attached report and recommendation of the United

States Magistrate, filed pursuant to 28 U.S.C. § 636(b)

(3), and concurs with and adopts the findings and con-

clusions of the Magistrate.

IT IS ADJUDGED as follows:

1. The petitioner was convicted in violation of the

Constitution of the United States.

2. The petitioner is entitled to issuance of a writ of

habeas corpus from this court.

IT IS ORDERED that a writ will issue unless the

respondent and the State of California shall, within sixty

(60) days from the date this judgment becomes final,

institute proceedings for a new trial.

IT 1S FURTHER ORDERED that the Clerk will serve

copies of this Order, by United States mail, on the

petitioner, on the Attorney General of the State of

California, and on the Presiding Judge, Los Angeles

County Superior Court.

DATED: September 4, 1975.

ROBERT J. KELLEHER

United States District Judge

35

NOT TO BE PUBLISHED

IN THE OFFICIAL REPORTS

In the Court of Appeal of the

State of California

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE

Plaintiff and Respondent,

v.

LAWRENCE SIGMOND BITTAKER,

Defendant and Appellant.

2d Crim. No. 20828

(Sup. Ct. No. A 116529)

APPEAL from judgment of the Superior Court of Los

Angeles County. Harold J. Ackerman, Judge. Affirmed.

Reginald D. Armstrong, under appointment by the

Court of Appeal, and Lawrence Sigmond Bittaker, in

propria persona, for Defendant and Appellant.

APPENDIX F

36

Evelle J. Younger, Attorney General, Herbert L.

Ashby, Chief Assistant Attorney General, Criminal Divi-

sion, William E. James, Assistant Attorney General,

Appeals Section, and Norman H. Sokolow and William S.

Abbey, Deputy Attorneys General, for Plaintiff and

Respondent.

Defendant was charged with burglary. (Pen. Code, §

459.) He was also charged with, and admitted, three prior

felony convictions. After a jury trial he was found guilty of

second degree burglary. He appeals from the judgment of

conviction, contending (1) that the evidence was insuf-

ficient to sustain the judgment; (2) that the court below

erred prejudicially in denying him the right of self-

representation; and (3) that he was denied the assistance

of effective trial counsel.

Sufficiency of Evidence

The secretary and another employee of the Woodland

Hills Community Church testified that everthing was in

order in the church when it was locked up for the night of

January 28, 1971. The custodian of the church discovered

next morning that it had been entered during the night and

that numerous items of office equipment were missing.

The secretary testified that the missing property consisted

of three typewriters, a dictaphone, a large table lamp, two

sets of bells packed in suitcase-like boxes, and miscel-

laneous supplies.

Dr. Charles F. Squire, a dentist, testified that he and his

wife lived in an apartment about 75 to 100 yards from the

church; that their bedroom was adjacent to the sidewalk;

that during the early morning hours of January 29, he was

awakened by a noise on the sidewalk near his bedroom

window; that he heard the sound of a car door or trunk lid

being closed; that because his car was parked in front of his

ee

37

apartment, he got out of bed to investigate; that he saw a

man walking on the sidewalk toward the church; that he

observed an unfamiliar car parked nearby, a 1960 or 1961

Ford Thunderbird, light blue or white in color, license

number JMD 475; that he went back to bed and shortly

thereafter again heard footsteps on the sidewalk; that he

went to the window and saw the same man carrying what

appeared to be two suitcases to the Thunderbird; that he

returned to bed, arose a short time later when he again

heard footsteps on the sidewalk and the closing of the car

door or trunk lid; that he went to the window and again

observed the same man walking on the sidewalk. The

witness stated that he saw the man’s face from a distance of

from 15 to 20 feet on the three occasions, and that the area

was well lighted. He testified that the man was wearing a

sport coat and slacks.

Doctor Squire’s wife reported the incident to the police.

The police ascertained that the Thunderbird car was

registered to defendant. The police went to defendant's

residence and placed him under arrest. Later the police

showed Doctor Squire six photographs of different per-

sons of somewhat similar appearance. Doctor Squire

selected defendant’s photograph and stated: “This was

the general appearance of the man I saw...” At trial the

doctor identified defendant as having the same general

appearance as the man he had seen on the three occasions

on the morning of the burglary.

Defendant did not testify at trial. An alibi witness,

Francisco Castillo, defendant’s roommate, testified that

defendant took him to work between 7:00 p.m. and 7:30

p.m. on January 28; that defendant had not been feeling

well and he, Castillo, telephoned defendant two or three

times during the course of the evening; that when he

finished work between 12:45 a.m. or 1:00 a.m., he was

38

picked up by defendant; that they went directly home,

Stayed up until 2:00 a.m. or 3:00 a.m., and went to bed;

that he was a light sleeper and was not disturbed during the

night.

B.J. McAlpin, an attorney, testified that he had worked

for some 13 years in the field of automobile sales; that he

had repossessed approximately one hundred automobiles

during that time; and that it was very easy for a person with

little experience to ‘“‘hot-wire’’ and steal a Thunderbird.

In evaluating this evidence we are guided by principles

recently summarized in People v. Reilly, 3 Cal.3d 421,

425: ‘An appellate court must view the evidence in the

light most favorable to respondent and presume in support

of the judgment the existence of every fact the trier could

reasonably deduce from the evidence. [Citations.] ‘If the

circumstances reasonably justify the trier of fact’s find-

ings, the opinion of the reviewing court that the circum-

stances might also be reasonably reconciled with a

contrary finding does not warrant a reversal of the

judgement.’ [Citations.] The test on appeal is whether

substantial evidence supports the conclusion of the trier of

fact, not whether the evidence proves guilt beyond a

reasonable doubt. [Citation.] The appellate court must

determine whether a reasonable trier uf faci could have

found the prosecution sustained its burden of proviny the

defendant guilty beyond a reasonable doubt. [Citation.]’’

Here, defendant and his automobile were observed by a

disinterested witness at the scene of the burglary. The hour

of his presence and the nature of his activity were most

unusual, He was observed carrying to his car two items

similar to property later reported as having been stolen.

Applying the rules set forth in Reilly, supra, to these facts

we conclude that the evidence is sufficient to support the

finding of the jury.

~ eee eee

39

Right of Self-Representation

At defendant’s arraignment on March 2, 1971 before

Judge Rosenthal the following colloquy occurred:

“THE DEFENDANT: Defendant wishes to appear

in Propria Persona, Your Honor.

“THE COURT: What qualifications do you have to

do that?

“THE DEFENDANT: Prior experiences in this

capacity. ne

“THE COURT: Have you ever studied law at any

university, school, or college?

“THE DEFENDANT: Not a such a school.

“THE COURT: The only schoo! you have attended

probably is the County Jail law library?

“THE DEFENDANT: I’ve never been in that one.

“THE COURT: Well, did you ever study law at any

State facility?

“THE DEFENDANT: Onan amateurish basis, Your

Honor.

“THE COURT: I don’t think I can allow you to

represent yourself.

“THE DEFENDANT: I wish to take exception and

demand my right.

“THE COURT: You are denied the right to proceed in

pro per. The Public Defender is appointed to represent

”

you.

On March 15 the following proceedings were held

before Judge Rosenthal:

“MR. MILLER [Deputy Public Defender]: Your

40

*,

Honor, in this matter, the defendant has informed me that

he wishes to make a motion to go pro per and to represent

himself. He informed me that he did not wish to have the

Public Defender represent him.

“THE COURT: Mr. Bittaker, if I remember, you

made a motion to that extent originally and I denied it, is

that correct?

“THE DEFENDANT: That is correct, sir.

“THE COURT: You want to renew the motion at this

time? ...

“THE DEFENDANT: If I may make a formal mo-

tion. I’m prepared at this time to answer your questions.

“THE COURT: All right, make the motion.

“THE DEFENDANT: If it pleases the court. . . the

Constitution guarantees the defendant the right to counsel

but the defendant is prepared to waive that right and no

Statute can force the defendant to be represented by the

Public Defender. If the Court questions it before the Bar

one Charles Maple, the Public Defender of the Los

Angeles Public Defender’s Office can be contacted as

some tinge ago Mr. Maple strongly commended the

defendant on a handling of a felony trial as to two and a half

days.

“Whether or not the Court at this time permits the

defendant to proceed in pro per, the trial court must do so

or commit reversible error if this Court denies defendant

the preliminary hearing transcripts and prejudices the

chances to proceed to trial without postponement in this

instant case.

““Formalized legal training is not necessary to conduct a

legal trial. Only common knowledge is necessary to attack

the credibility, as the defendant has an IQ of 138, an

= -

41

excellent command of the English language, and prior trial

experience. There is not sufficient cause to believe the

defendant incompetent to proceed pro per.

“THE COURT: AsI recall, the last time the defendant

informed the Court that he had never completed high

school or college. -

“THE DEFENDANT: I have completed high school

and was enrolled in college at the time of my arrest.

“THE COURT: And did you at any time take any

legal courses?

“THE DEFENDANT: Business law; no formalized

training in terms of criminal law, Your Honor.

“THE COURT: And you have no degree authorizing

you to practice law?

“THE DEFENDANT: I thought I had the backing of

the Constitution of the United States. As I said a moment

ago, I have gone pro per before.

“I conducted two and a half days of trial. The judge in

the courtroom prior to when I tried that case denied my

doing so in his courtroom. He had me rescheduled to

another courtroom. While waiting in the bull pen for such

removal [ heard this judge tell the prospective jury panel

that under the law I was entitled to it but he would not have

it in his courtroom.

“THE COURT: Well, every judge has a right to his

own interpretation of the law and it is my understanding

that no person can represent himself unless they are

qualified by education, background, and experience, and it

is my understanding that if I allow you to represent

yourself I actually am allowing you to testify against

yourself or misrepresent yourself and not give you all the

rights to which the constitution also gives you. So at this

42

time motion again will be denied.”

Defendant, after some further dissertation elected to

remain mute, a plea of not guilty was entered on his behalf,

and the case was set for trial.

In People v. Sharp, __. Cal.3d : .* and in

People v. Siegenthaler, _. Cal.3d ; , ™ our

Supreme Court held that the right of self-representation is

not constitutionally compelled, and that the error, if any, in

withholding such right does not require a reversal except

where a miscarriage of justice results. (See Cal. Const.,

art. VI, § 13; People v. Watson, 46 Cal.2d 818, 834-

835.) The court added in Sharp, at page ___***: “We

have heretofore set forth standards by which a trial court

may determine the competency of an accused who wishes

to represent himself as a condition for granting such a

motion (see People v. Floyd (1970) 1 Cal.3d 694, 702-

703 and cases cited there), and we do not now depart

therefrom.”

Floyd states that “a defendant’s right to represent

himself cannot be denied simply because he is unable to

‘demonstrate either the acumen or the learning of a skilled

lawyer.” (1 Cal.3d at p. 702.) Here the court below erred

in denying defendant the right of self-representation solely

on the ground that he lacked legal training. It also erred in

not making the inquiry suggested by Floyd, whether

“defendant has an intelligent conception of the conse-

quences of his act .. . and understands the nature of the

offense, the available pleas and defenses, and the possible

punishments.” (1 Cal.3d at p. 703.) But as pointed out in

Sharp, supra, and Siegenthaler, supra, such error

* Crim. 15540, filed July 7, 1972; page 23 of typewritten opinion.

** Crim. 15541, filed July 7, 1972; page 9 of typewritten opinion.

*** Page 23 of typewritten opinion.

ae + eos

a -—

43

requires a reversal only if it results in a miscarriage of

justice. Defendant argues that here there was a miscar-

riage of justice in that he had ineffective trial counsel.

Assistance of Trial Counsel

In a brief filed in propria persona, defendant contends

that the public defender did not present all the evidence at

trial which, he, defendant would have done if he had been

permitted to conduct his own defense; he mentions such

evidence as: that all of his shoes were rubber soled and not

likely to make the noise heard by the eyewitness; that he

did not own a sport coat as described by Doctor Squire;

that no inquiry was made as to the type of tool used to gain

entrance to the office or whether defendant owned such a

tool; that since he had extensive automobile, locksmith

and electrical skills, thereby making it easy for him to steal

a car, it would be ridiculous for him to use his own car in a

burglary; that appointed counsel did not interview his alibi

witness until just prior to trial.

“To justify relief on the ground that counsel was

inadequate, it must appear that the trial was reduced to a

farce or sham through the attorney’s lack of competence,

diligence, or knowledge of law.” (People v. Ibarra, 60

Cal.2d 460, 464.) No such showing is made here. The

evidence now proffered by defendant, if believed, would

have added little if anything to defendant’s defense.

Defendant does not indicate that his trial counsel’s belated

interview with his alibi witness caused any prejudice; he

does not point out what if any additional evidence could

have been produced had counsel conferred with the

witness in advance of the day of trial.

The record indicates that defendant was represented by

able counsel who strenuously cross-examined the prose-

cution’s witnesses, presented evidence in defendant's

behalf, and argued the merits of the case. From our review

44

of the record we conclude that it is not reasonably probable

that a result more favorable to defendant would have been

reached if he had been permitted to represent himself. The

error in denying defendant such permission was therefore

not prejudicial. (Cal. Const., art. VI, § 13; People v.

Watson, supra, 46 Cal.2d 818, 834-835.)

Judgment affirmed.

SCHWEITZER, J.

We concur:

FORD, P.J.

ALLPORT, J.

45

Los Angeles, Cal. Aug. 1-1972

TITLE

PEOPLE.

BITTAKER

No. 20828

PETITION FOR REHEARING DENIED.

CLAY ROBBINS, Clerk

APPENDIX G

46

CLERK’S OFFICE, SUPREME COURT

4250 STATE BUILDING

SAN FRANCISCO, CALIFORNIA 94102

SEP. 20, 1972

DEAR SIR: J have this day filed Order

HEARING DENIED

In re:

2 Crim. No. 20828

People

v.

Bittaker

Respectfully,

G.E. BISHEL

Clerk.

APPENDIX H

47

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

February 20, 1973

Mr. L.S. Bittaker

P.O. Box A-E

San Luis Obispo, Calif. 93401

RE: BITTAKER v. CALIFORNIA,

No. 72-5477.

Dear Sir:

The Court today denied the petition for a writ of

certiorari in the above-entitled case.

Very truly yours,

MICHAEL RODAK, JR., Clerk

By

Helen Taylor, (Mrs.)

Assistant Clerk

Hon. Evelle J. Younger

Attorney General of Calif.

State Bldg.-Civic Center

217 West First St.

Los Angeles, Calif. 90012

Att’n: Norman H. Sokolow, Esq.

Dep. Attorney General

APPENDIX |