In Re Carmen

313 P.2d 817, 48 Cal. 2d 851, 1957 Cal. LEXIS 236

• Court: California Supreme Court
• Decided: August 2, 1957
• Docket: Crim. 5667
• Status: Published

Opinions

SPENCE, J.

Petitioner, Rayna Tom Carmen, is confined in the state prison at San Quentin under judgments of conviction of first degree murder and of assault with intent to commit murder. He seeks his release from custody upon alleged jurisdictional grounds.

Petitioner was first convicted of the two offenses in the Superior Court of Madera County in 1950. Wilbur Dan McSwain was the victim of the murder and Alvin McSwain was the victim of the assault. The crimes were committed near the home of the victims. The initial altercation between the parties had occurred earlier the same morning at a point in Madera County some miles distant from the scene of the crimes. After that altercation petitioner had driven to his home, had obtained a gun, and had then driven to the home of the victims to await their return. The shooting occurred immediately following their return, while Alvin McSwain was still in an automobile and Wilbur Dan McSwain was standing near it.

At the first trial it was alleged and proved that the crimes had been committed in Madera County. Petitioner was convicted of both offenses and was sentenced to imprisonment for the term prescribed by law on the assault count and to suffer the death penalty on the murder count. Upon appeal, this court affirmed the assault conviction and reversed the murder conviction. (People v. Carmen, 36 Cal.2d 768 [228 P.2d 281].)

At the second trial in the Superior Court of Madera County petitioner was again convicted of first degree murder for the killing of Wilbur Dan McSwain and was again sentenced to suffer the death penalty. It was again alleged and proved that the murder had been committed in Madera County.

At the time of oral argument before this court on the appeal from the second murder conviction, it was suggested for the first time that facts might be adduced showing that the murder had been committed on a small tract of land within Madera County known as an “Indian allotment,” that such allotment constituted “Indian country,” and that petitioner was an ‘ ‘ Indian, ’ ’ within the meaning of those terms as used in certain federal statutes, with the result that exclusive jurisdiction over the offense might be vested in the federal courts. (See 18 U.S.C.A. §§ 1151, 1152, 1153, and 3242, as amended May 24, 1949.) Petitioner thereupon filed an application to produce on the appeal additional evidence relating to the newly suggested facts. This court denied the application and affirmed the second judgment of conviction. (People v. Carmen, 43 Cal.2d 342 [273 P.2d 521].) Noting that the facts shown in the trial court record were insufficient to show exclusive jurisdiction in the federal courts, this court stated that “Since the defendant committed the crime in a county of this state, it may not be assumed that any special circumstances existed which would deprive the state of jurisdiction.” (P. 349.)

Thereafter petitioner commenced this habeas corpus proceeding, claiming a lack of jurisdiction in the courts of this state on the basis of allegations that he and the McSwains were “Indians” and that the murder and the assault had been committed in “Indian country.” Because of the alleged jurisdictional questions involved, this court issued a writ of habeas corpus and made an order of reference for the purpose of determining the status of petitioner and Wilbur Dan McSwain, as well as the locus of the crimes. Hearings were conducted and the referee filed his findings with this court.

The People contend that the evidence is insufficient to sustain the referee’s findings concerning the status of petitioner and Wilbur Dan McSwain. Upon further consideration, however, we have concluded that it is unnecessary to determine the sufficiency of the evidence to support the referee’s findings or the adequacy of said findings. We have reached this conclusion because we are of the opinion that in the absence of exceptional circumstances, which are not present here, petitioner may not contest, in this collateral attack upon the final judgments of conviction, the trial court’s determination and exercise of jurisdiction, upon the basis of new and additional facts which do not appear in the trial court record.

We are here concerned with the nature of the inquiry which may be made on habeas corpus where it is claimed that a trial court of general jurisdiction lacked jurisdiction over an offense by reason of the status of the parties involved and the place at which the crime occurred Traditionally the inquiry on habeas corpus has been limited to an examination of facts appearing upon the face of the record and no evidence dehors the record has been received to impeach the judgment. (In re Selowsky, 189 Cal. 331 [208 P. 99]; In re Stevenson, 187 Cal. 773 [204 P. 216]; In re Nicholson, 24 Cal.App.2d 15 [74 P.2d 288] ; In re Mirando, 15 Cal.App.2d 443 [59 P.2d 544]; In re Murphy, 79 Cal.App. 64 [248 P. 1044] ; In re Ballas, 53 Cal.App. 109 [199 P. 816]; In re Todd, 44 Cal.App. 496 [186 P. 790] ; see also 39 C.J.S., Habeas Corpus, § 16, p. 456.) However, it was said in In re Connor, 16 Cal.2d 701, 712 [108 P.2d 10], that “ [t]he scope of inquiry on habeas corpus in this state may . . . under exceptional circumstances, extend over the entire course of proceedings in the lower courts . . . and may embrace additional evidence received by this court either directly or under an order of reference.”

The scope of inquiry has been so extended in instances where a petitioner has contested the validity of a final judgment of conviction upon the ground that he had been denied the aid of counsel {In re Connor, supra, 16 Cal.2d 701) ; or that his conviction had been secured solely by perjured testimony knowingly used by prosecuting officials (In re Mooney, 10 Cal.2d 1 [73 P.2d 554]) ; or that the law under which he had been convicted was unconstitutional (In re Bell, 19 Cal.2d 488 [122 P.2d 22]).

The asserted grounds of claimed lack of jurisdiction in the instant case, however, do not appear to be of such nature as would warrant a departure from the traditional scope of inquiry or would permit the consideration of new and additional facts alleged by petitioner which do not appear in the trial court record. The situation here presented is not one in which the asserted lack of jurisdiction is based upon a claim by petitioner that he was convicted of violating an unconstitutional law or was denied any fundamental constitutional right. (See In re Bell, supra, 19 Cal.2d 488, 501-502.) On the contrary, petitioner’s claims are based entirely upon federal statutes (18 U.S.C.A. §§ 1151, 1152, 1153, and 3242), the effect of which has been changed since petitioner committed his offenses, by legislation giving the courts of this state unquestioned jurisdiction over offenses committed in “All Indian country within the state.” (18 U.S.C.A. § 1162, as amended Aug. 24, 1954.)

Petitioner had the opportunity to raise the jurisdictional question here involved by presenting the alleged facts at his trials. He failed to do so and, upon the facts there alleged and proved, the trial court’s implied determination that it had jurisdiction over the offenses was correct. To permit petitioner to now relitigate that issue would encourage defendants charged with crimes, the jurisdiction over which might depend upon complex factual determinations, to withhold the raising of those issues until after they had attempted to obtain a favorable result at a trial on the merits, and perhaps until such time as a conviction by the court claimed to have jurisdiction would be impossible by reason of the statute of limitations, or otherwise. (See Ex parte Wallace, infra, 81 Okla. Crim. 176 [162 P.2d 205].) The sanction of such procedure would permit piecemeal litigation of factual issues which should be finally determined upon a single trial. Federal jurisdiction over offenses which are committed within the boundaries of this state and which are defined by state law is exceptional and, in trials in the courts of this state, such jurisdictional claims are ordinarily defensive matter. (See People v. Collins, 105 Cal. 504, 509 [39 P. 16].) Petitioner therefore should have alleged and proved in the trial court any facts which he now claims might have had the effect of vesting exclusive jurisdiction in the federal courts.

The foregoing conclusions are supported by both state and federal authority. In State v. Utecht, 220 Minn. 431 [19 N.W.2d 706, 161 A.L.R. 1316], and Ex parte Wallace, supra, 81 Okla Crim. 176 [162 P.2d 205], the problem presented was almost identical with that involved here. Petitioners therein by collateral attack on habeas corpus attempted for the first time to contest the jurisdiction of the state courts of general jurisdiction which had convicted them. It was claimed that petitioners were “Indians” and that the crimes of which they had been convicted had been committed in “Indian country.” Relief was denied in both cases upon the ground that the determination of jurisdiction by a trial court of general jurisdiction was not subject to collateral attack on habeas corpus where petitioners had not contested the jurisdiction of the court at the trial nor brought to the trial court’s attention facts from which lack of jurisdiction could have been determined, and where upon the face of the trial court record there was no showing of lack of jurisdiction. (See also 39 C.J.S., Habeas Corpus, § 16, p. 456; 25 Am.Jur., Habeas Corpus, § 26, p. 161.) While in neither of the cited eases did petitioner attempt to raise the jurisdictional question upon appeal as was done in the instant case, the attempt herein, as heretofore noted, was unsuccessful. (People v. Carmen, supra, 43 Cal.2d 342.) That factor, therefore, would not appear to be a distinguishing one.

On numerous occasions the federal courts have likewise held that a final judgment of conviction may not be attacked on habeas corpus upon allegations of new and additional facts claimed to show that the convicting court lacked jurisdiction over the offense because of the alleged status of the parties or the alleged place where the crime was committed, at least when there was no affirmative showing of lack of jurisdiction upon the face of the trial court record. (Toy Toy v. Hopkins, 212 U.S. 542 [29 S.Ct. 416, 53 L.Ed. 644]; Davis v. Johnston, 144 F.2d 862; Hatten v. Hudspeth, 99 F.2d 501; Ex parte Savage, 158 F. 205; see also Rodman v. Pothier, 264 U.S. 399 [44 S.Ct. 360, 68 L.Ed. 759] ; In re Lincoln, 202 U.S. 178 [26 S.Ct. 602, 50 L.Ed. 984]; Walsh v. Johnston, 115 F.2d 806; Walsh v. Archer, 73 F.2d 197; Archer v. Heath, 30 F.2d 932; United States v. Lair, 195 F. 47 [115 C.C.A. 49].)

Certain of the cited federal cases involved petitioners claiming that the federal courts which had convicted them lacked jurisdiction because the petitioners therein were “allotted Indians” and no longer wards of the government {Toy Toy v. Hopkins, supra-, Ex parte Savage, supra), or that the locus of the crime was no longer “Indian country” {Toy Toy v. Hopkins, supra-, Davis v. Johnston, supra-, Hatten v. Hudspeth, supra). In each instance the court refused to redetermine the question of jurisdiction. Moreover, the refusal was not made dependent upon whether the jurisdictional issue had been raised at the trial or whether at the time of trial petitioner was aware of the facts upon which the alleged lack of jurisdiction was later asserted. Thus in Davis v. Johnston, supra, 144 F.2d 862, it was said: “In appellant’s petition he states that he did not object to the jurisdiction of the court in the trial of the criminal case for the reason, he now alleges that he was not aware of the fact that the store building in which the crime was committed was not within the reservation. The decision of the court in the criminal case upon the factual question of jurisdiction is equally conclusive whether or not it was raised by the defendant.”

The case of Tooisgah v. United States, 186 F.2d 93, is not helpful to petitioner. There an Indian sought redetermination of the trial court’s jurisdiction by a motion to vacate under section 2255, title 28, United States Code Annotated. The court, one judge dissenting, reexamined the question of jurisdiction, found as a matter of law that it was lacking, and directed that the judgment he vacated. The court was careful, however, to distinguish two of the above cited cases, stating at pages 95-96: “Unlike Hatten v. Hudspeth, 10 Cir., 99 F.2d 501, and Davis v. Johnston, 9 Cir., 144 F.2d 862, no new or additional facts are sought to be injected into the case, and no adjudicated facts are sought to be impeached.” It appears clear from the quoted language that the present case is likewise distinguishable, since we determined on the second appeal (People v. Carmen, supra, 43 Cal.2d 342) that there were no facts in the trial court record which showed lack of jurisdiction in the trial court. Petitioner’s claim is therefore wholly dependent upon new and additional facts which he seeks to inject into this proceeding as the basis for his collateral attack. Under the rule established by the numerous state and federal decisions, such collateral attack is not permitted under the circumstances; and if there may be said to be anything in the opinions in State ex rel. Irvine v. District Court, 125 Mont. 398 [239 P.2d 272], or Application of Andy, 49 Wn.2d 449 [302 P.2d 963], which lends support to petitioner’s position, it is to that extent out of harmony with the established rule and should not be followed.

The established rule was clarified but not modified in Bowen v. Johnston, 306 U.S. 19, 27 [59 S.Ct. 442, 83 L.Ed. 455], where it was said that the traditional limitations on inquiry on habeas corpus may, in some situations, “yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” The court there determined that the important and unanswered conflict then existing between federal and state authorities concerning the purely legal question of their respective claims to jurisdiction over a national park constituted such “exceptional circumstances.”

The trial court record there showed that the murder had been committed “on the Government Reservation known as the Chickamauga and Chattanooga National Park within the exterior limits of the State of Georgia” (p. 21) ; and “The sole question was whether this Park was within the exclusive jurisdiction of the United States” (p. 23). The question of jurisdiction was therefore a “question of law” (p. 27) rather than of fact, as it depended solely “upon the terms of the consent or cession given by the legislature of Georgia,” of which the court took “judicial notice.” (P. 23.) The court there determined as a matter of law that the federal court had jurisdiction and it affirmed the judgment of the Circuit Court, which affirmed the judgment of the District Court denying the petition for habeas corpus. No attempt had been made in that case to present any new or additional facts concerning jurisdiction in the habeas corpus proceeding. The court there merely found “exceptional circumstances” to justify its determination on habeas corpus of an important question of law following a final judgment of conviction. The discussion in that case of the decisions in Toy Toy v. Hopkins, supra, 212 U.S. 542, Rodman v. Pothier, supra, 264 U.S. 399, and Walsh v. Archer, supra, 73 F.2d 197, clearly shows that the court did not intend to modify the general rule established by those decisions. (See Davis v. Johnston, supra, 144 F.2d 862, 863.)

Similarly, the case of Ex parte Van Moore, 221 F. 954, was found to present “exceptional circumstances” in that long after petitioner’s conviction in the state court of South Dakota, the United States Supreme Court had determined as a matter of law, contrary to the prior determinations of the courts of South Dakota and other jurisdictions, that Indian allotments held in trust outside of Indian reservations had at all times been within the meaning of “Indian country” as that term was used in the federal statutes. As the court said at page 971, “ [T]he recent determination of the questions here involved by the Supreme Court of the United States in re U.S. v. Pelican, supra [232 U.S. 442 (34 S.Ct. 396, 58 L.Ed. 676)], at variance with the rule announced by the Supreme Court of the state on denying his application for a release, constitutes exceptional circumstances, and justifies the issuance of the writ. ...” It is apparent that the instant case involves no such exceptional circumstances as were present in Bowen v. Johnston, supra, and Ex parte Van Moore, supra.

Contrary to petitioner’s claim the cases of In re Seeley, 29 Cal.2d 294 [176 P.2d 24], and In re McVickers, 29 Cal.2d 264 [176 P.2d 40], lend no support to his position. Neither of these cases involved an attack upon a final judgment of conviction but were concerned only with the question of habitual criminal status. This court recognized the distinction when it said in In re Seeley, supra, at page 299, in referring to the decision in In re McVickers, supra-. “In that case it was held that an adjudication of habitual criminal status is not a judgment of conviction but is, in effect, only an ancillary and severable determination of a fact pertinent to the length of imprisonment and right to parole, and hence that such determination is not necessarily characterized by the high degree of finality of a final judgment of conviction.”

The federal courts have distinguished, as we have here, between habeas corpus proceedings involving claims of lack of jurisdiction upon grounds similar to those here involved and those wherein a petitioner has contested jurisdiction on the ground that he was denied due process of law at his trial. Thus while the federal courts, as appears from the cited authorities, have consistently refused to redetermine questions of status of the parties or the locus of the crime on the basis of facts not appearing on the face of the trial court record, they have shown a willingness to look to evidence dehors the record where a petitioner has claimed that he has been denied his fundamental constitutional rights. (See Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357]; Mooney v. Holohan, 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406] ; Moore v. Dempsey, 261 U.S. 86 [43 S.Ct. 265, 67 L.Ed. 543] ; Frank v. Mangum, 237 U.S. 309 [35 S.Ct. 582, 59 L.Ed. 969] ; see also United States ex rel. McCann v. Adams, 320 U.S. 220 [64 S.Ct. 14, 88 L.Ed. 4] ; Waley v. Johnston, 316 U.S. 101 [62 S.Ct. 964, 86 L.Ed. 1302].)

It therefore appears that both reason and authority support the view that no exceptional circumstances are presented here and that our inquiry in this proceeding is limited to the record of the trial court in which the final judgments of conviction were entered. Having concluded that we may not here consider new and additional facts concerning the jurisdiction of the Superior Court of Madera County over the offenses of which petitioner was convicted, it follows that petitioner’s allegation are insufficient to entitle him to any relief in this proceeding.

The writ is discharged and petitioner is remanded to custody.

Gibson, C. J., Shenk, J., and McComb, J., concurred.