Santa Clara University School of Law

Searle, H. Reed

English

An Argument for the Public Defender System

Munoz, Aurelio

Felony Murder Rule - A Re-Examination, The Notes

Samuels, David L.

Disregard of Corporate Entity for the Taxpayer\u27s Benefit: A Case Study

Santa Clara Law Review

Santa Clara Law ReviewVolume 5 | Number 1 Article 251-1-1964Recent DecisionsSanta Clara Law ReviewFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Case Note is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationSanta Clara Law Review, Case Note, Recent Decisions, 5 Santa Clara Lawyer 99 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss1/25SECURITY TRANSACTIONS: GUARANTOR'SWAIVER OF CCP 580b: VALINDABUILDERS v. BISSNER(CAL. 1964)Valinda Builders v. Bissner' is part of a continuing series ofCalifornia decisions reaffirming the protection of purchase moneymortgagors against deficiency judgments. This case specifically heldthat a guarantor of a note and deed of trust is protected againstdeficiency judgments under Code of Civil Procedure Section 580b,if the guarantor is, in fact, primarily responsible for the debt, andthe primary obligor is a mere instrumentality of the guarantor; andif, in a contract for sale of real property, a vendee gives a noteand deed of trust to the vendor to secure part of the purchase price,and also waives his protection against deficiency judgments providedby Code of Civil Procedure Section 580b, such waiver is againstpublic policy and ineffective.'In 1954 Valinda sold to defendants Bissner and Lownes 17.68acres of land at $4500 per acre. Defendants formed a corporationcalled Trend Homes, Inc. in which defendants and their wiveswere the only stockholders. The corporation executed a note andtrust deed in favor of Valinda to cover $67,775 of the purchaseprice, and Bissner and Lownes agreed to guarantee the corporation'spayment. Defendants further agreed to waive their protectionagainst deficiency judgments, as provided in Code of Civil ProcedureSection 580b. Trend Homes then borrowed funds to finance theconstruction of houses on the land, and Valinda's trust deed wassubordinated to the security of the construction lenders. The pro-ceeds obtained from the sale of the 53 houses constructed wereused to pay off the higher priority construction loans, and only$6,801.98 was paid to Valinda, representing.interest on the note andtrust deed. Valinda then brought suit against both Bissner and1 Valinda Builders, Inc. v. Bissner, 230 A.C.A. 112, 40 Cal. Rptr. 735 (1964).2 CAL. CODE CIV. PROC. § 580b now reads: "No deficiency judgment shalllie in any event after any sale of real property for failure of the purchaser to com-plete his contract of sale, or under a deed of trust, or mortgage, given to the vendorto secure payment of the balance of the purchase price of real property, or undera deed of trust, or mortgage, on a dwelling for not more than four families givento a lender to secure repayment of a loan which was in fact used to pay all or partof the purchase price of such dwelling occupied, entirely or in part, by the purchaser.Where both a chattel mortgage and a deed of trust or mortgage have been givento secure payment of the balance of the combined purchase price of both realand personal property, no deficiency judgment would lie under the deed of trust ormortgage on real property."SANTA CLARA LAWYERLownes on the basis of their guaranty. In deciding for the plaintiffthe trial court found• ..that the Plaintiff and the individual defendants undertook andagreed that the benefits of Section 580b of the California Code ofCivil Procedure would not accrue to the Defendant herein and thatsaid individual defendants would not be privileged to defend anyclaim on said guaranty by Plaintiff upon the basis of said Section580b of the Code.3On appeal the defendants contended that they were reallythe primary obligors of the note and trust deed, and that the plain-tiff vendor could not look beyond the security for satisfaction ofhis claim under Section 580b. The District Court of Appeal agreedwith these contentions and further stated that the defendants'waiver of their protection under 580b was ineffective to precludethem from asserting it. In so doing, the lower court's decision thatthe defendants, as guarantors, could waive their protection under580b, was reversed.In support of its position that the defendants were not guaran-tors of the note and trust deed, the court cited two similar casesin which the purchasers of real property were afforded the protectionof Section 580b. In Riddle v. Lushing4 the vendee conducted busi-ness through a partnership but was nevertheless considered a princi-pal to the transaction. In In re Wilton-Maxfield Management Com-pany' the purchaser of real property was declared primarily re-sponsible for the payment of the purchase price even though heliterally guaranteed payment by a dummy company. The courtdeclared Bissner and Lownes primary obligors by stating "It isthus settled beyond question that one who contracts to buy landdoes not alter his identity and relation as purchaser by a purportedguaranty of performance of his own obligation to pay the purchaseprice."'The court invalidated the defendants' waiver of the protectionof Section 580b by citing several cases which held that "Section580b ... was enacted in the interests of the general public. '"7 It thencited Civil Code Section 3513 which provides that "a law establishedfor a public reason cannot be contravened by a private agreement." '8 Valinda Builders, Inc. v. Bissner, 230 A.C.A. 112, 40 Cal. Rptr. 735 (1964).4 Riddle v. Lushing, 203 Cal. App. 2d 831, 21 Cal. Rptr. 202 (1962).5 In re Wilton-Maxfield Management Co., 117 F.2d 913 (1941).6 Valinda Builders, Inc. v. Bissner, 230 A.C.A. 112, 40 Cal. Rptr. 735 (1964).7 Ibid.8 CAL. Civ. CODE § 3513, note: The court establishes its public policy argumentby citing among others, such cases as Winkleman v. Sides, 31 Cal. App. 2d 387, 88P.2d 147 (1939), prohibiting advance waiver of Cal. Code Civ. Proc. § 726; CaliforniaBank v. Stimson, 89 Cal. App. 2d 552, 201 P.2d 39 (1949), prohibiting waiver of[Vol. 5RECENT DECISIONSValinda is significant in the context of legislative and judi-cial attitudes toward deficiency judgments because it reaffirms thecourts' liberal construction of statutes limiting deficiency judgmentsto protect the interests of the judgment debtor.9 This is particularlyinteresting in view of the Legislature's 1963 amendments to Section580b which appeared to limit the courts' broader interpretation ofthe statute prior to its amendment. Two well known authorities,Hetland 0 and Riesenfeld," have analyzed the legislative and judi-cial history of the California statutes limiting deficiency judgments.It is sufficient to note here by way of summary that the earlieststatutory provision limiting deficiency judgments was Code of CivilProcedure Section 726, enacted in 1872, which allowed a creditoronly one cause of action against his debtor.' 2 In 1933 the legislaturepassed Sections 580a and 580b.11 Section 580a limited the amountof a deficiency judgment to the difference between the debt andthe fair market value of the security, if the foreclosure was by saleof the security. Section 580b gave much greater protection by pro-hibiting deficiency judgments if the debtor was a purchase moneymortgagor. Finally, Section 580d, enacted in 1940, prohibited defi-ciency judgments after a foreclosure by private sale. 4Section 580b has been amended three times since its originalenactment in 1933.1 In 1935 it was re-enacted to extend its protec-tion to debtors under contracts of sale, whereas it had previouslyapplied only to purchase money mortgages and deeds of trust. 6It was similarly amended in 1949.1" There were, however, seriousambiguities in the statute which led to judicial construction. Insome instances the courts were strict in their protection, with-Cal. Code Civ. Proc. § 580; Lucky Investments Inc. v. Adams, 183 Cal. App. 2d 462,7 Cal. Rptr. 57 (1960) stating, "Whatever the intent of the parties, Adams couldnot waive the protection of § 580b in advance." See also Freedland v. Greco, 45 Cal.2d 462, 289 P.2d 463 (1955) which states: "In Brown v. Jensen, 41 Cal. 2d 193, weheld: 'These provisions (Cal. Code Civ. Proc. §§ 580-580d, 726) indicate a con-sidered course on the part of the Legislature to limit strictly the right to recoverdeficiency judgments, that is, to recover on the debt more than the value of thesecurity.' " The court summarizes by deciding, "Plaintiff's (Valinda's) reliance uponthe findings that the defendants waived all protection of § 580b must fail. The agree-ment, if made, was contrary to public policy, void and ineffectual for any purpose."9 The California statutes limiting deficiency judgments are usually meant toinclude CAL. CODE CIV. PROC. §§ 580a, 580b, 580d, and 726.1o HETLAND, Deficiency Judgment Limitations in California-A New JudicialApproach, 51 Calif. L. Rev. 1 (1963).11 RIESENTELD, California Legislation Curbing Deficiency Judgments, 48 Calif.L. Rev. 705 (1960).12 CAL. CODE CIV. Paoc. § 726.13 Cal. Stat. c. 642, § 4-5 (1933).14 Cal. Stat. Ex. Sess. c. 29, § 2 (1940).15 Cal. Stat. c. 642, § 5 (1933).16 Cal. Stat. c. 650, § 5; c. 680, § 1 (1935).17 Cal. Stat. c. 1599, § 1 (1949).1964]SANTA CLARA LAWYERholding protection from an independent guarantor," and denyingprotection to a vendee whose debt was secured by land other thanthat for which the purchase money was loaned.'" In general, how-ever, the courts have been quite liberal in their interpretation ofthe statute. For example: the section has been construed so that athird party lender and mortgagee, other than the vendor of thereal estate, is considered to provide purchase money; 20 an assuminggrantee of the original purchase money mortgagor has been pro-tected,2' as well as the guarantor of a mortgage or trust deed,provided that he is primarily responsible for the debt;22 finally,a vendee has been prohibited from waiving his protection under 580bprior to default.23After many years of such judicial interpretation the legislatureacted in 1963 to make the statute more explicit by limiting the deb-tor's protection to mortgages given "to the vendor ...or undera deed of trust or mortgage on a dwelling for not more than fourfamilies given to a lender to secure repayment of a loan which wasin fact used to pay all or part of the purchase price of such dwellingoccupied, entirely or in part, by the purchaser. 24 Whether thecourts will find in this 1963 amendment legislative intent, in theface of an expanding economy, to limit a debtor's previouslybroad protection will have to await future decisions. The Valindadecision appears to indicate no such trend, rather, it seems to pointtoward continued judicial protection of the purchase money mort-gagor.H. Kent Frewing18 Bank of America v. Hunter, 8 Cal. 2d 592, 67 P.2d 99 (1937) ; Security FirstNational Bank v. Chapman, 41 Cal. App. 2d 219, 106 P.2d 241 (1940).'9 Roseleaf Corp. v. Chierighino, 59 Cal. 2d 35, 378 P.2d 97, 27 Cal. Rptr. 873(1963).20 Brown v. Jensen, 41 Cal. 2d 193, 259 P.2d 425 (1953). Bargioni v. Hill,59 Cal. 2d 121, 378 P.2d 593, 28 Cal. Rptr. 321 (1963).21 Stockton Say. & Loan v. Massanet, 18 Cal. 2d 200, 114 P.2d 592 (1941).22 In re Wilton-Maxfield Management Co., 203 Cal. App. 2d 831, 21 Cal. Rptr.902 (1962).28 Freedland v. Greco, 45 Cal. 2d 462, 289 P.2d 463 (1955) ; Lucky InvestmentsInc. v. Adams 183 Cal. App. 2d 462, 7 Cal. Rptr. 57 (1960).24 Cal. Stat. c. 2158, § 1 (1963).

Recent Decisions

Gray, Thurman L.

Santa Clara Law ReviewVolume 5 | Number 1 Article 201-1-1964Right to Counsel in California, The Notes andThurman L. GrayFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Comment is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationThurman L. Gray, Comment, Right to Counsel in California, The Notes and, 5 Santa Clara Lawyer 75 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss1/20THE RIGHT TO COUNSEL IN CALIFORNIATwo recent decisions' by the California Supreme Court mayhave a profound effect upon the handling of future criminalcases during the investigatory and accusatory stages, and upon theadmissability of evidence gathered during those stages. Both caseswere decided on August 31, 1964, and each reversed a convictionfor murder. The reversible error, and the one with which this paperis concerned, was that the defendant was denied his constitutionalright "to have the Assistance of Counsel for his defence."'FEDERAL CASESThe California court relied heavily upon two decisions by theUnited States Supreme Court.' The first case, Gideon v. Wainwright,involved a defendant charged with the commission of a non-capitalfelony. He appeared in court without funds and asked the court toappoint counsel for him. His request was denied on the ground thatFlorida law permitted appointment for indigent defendants in capitalcases only. The defendant conducted his own defense and was con-victed. After the Florida Supreme Court denied his application fora writ of habeas corpus, he applied to the Supreme Court of theUnited States. The Supreme Court appointed counsel for him and"requested both sides to discuss in their briefs and arguments,'Should the Court's holding in Betts v. Brady be reconsidered.' "IThe Betts case held that a "refusal to appoint counsel for anindigent defendant did not necessarily violate the Due ProcessClause of the Fourteenth Amendment."5Asserted denial (of due process) is to be tested by an appraisal of thetotality of facts in a given case. That which may, in one setting,constitute a denial of fundamental fairness, shocking to the universalsense of justice, may, in other circumstances, and in the light of otherconsiderations fall short of such denial. 6The opinion in Gideon' stated that since the Court in Betts8 treated1 People v. Anderson, 61 A.C. 903, 394 P.2d 945, 40 Cal. Rptr. 257 (1964),and People v. Dorado, 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr. 264 (1964). TheAttorney General has petitioned for and the court has granted a rehearing of Peoplev. Dorado. See infra notes 32-33.2 U.S. CONST. AMEND. VI.3 Escobedo v. Illinois, 378 U.S. -, 84 S. Ct. 1758 (1964) and Gideon v.Wainwright, 372 U.S. 335 (1963).4 Gideon v. Wainwright, 372 U.S. 335, 338 (1963).5 U.S. Const. Amend. XIV.6 Betts v. Brady, 316 U.S. 455, 462 (1942).7 Gideon v. Wainwright, 372 U.S. 335 (1963).8 Betts v. Brady, 316 U.S. 455 (1942).75SANTA CLARA LAWYERDue Process as a "concept less rigid and more fluid than those en-visaged in other specific and particular provisions of the Bill ofRights,"9 and since "the facts and circumstances are so nearly in-distinguishable, we think the Betts v. Brady holding if left standingwould require us to reject Mr. Gideon's claim that the Constitutionguarantees him the assistance of counsel."'" But the Court did notagree with the prior interpretation of Due Process and concludedthat Betts should be overruled.The Court next considered whether "right to counsel" in theSixth Amendment" is made obligatory upon the states by theFourteenth Amendment. Referring to Betts, which held that "ap-pointment of counsel is not a fundamental right, essential to a fairtrial,"' 2 the Court said:Plainly, had the Court concluded that appointment of counsel for anindigent criminal defendant was 'a fundamental right, essential to afair trial,' it would have held that the Fourteenth Amendment re-quires appointment of counsel in a state court, just as the SixthAmendment requires in a federal court.1"In support of its position, the Court cited Powell v. Alabama 4 where-in the Court considered all the historical data examined in Bettsand unequivocally declared that "the right to the aid of counsel isof this fundamental character."' " The fundamental nature of theright was re-emphasized in later cases.'"In reversing the state court's decision, the Court concluded bysaying:[T]he Court in Betts v. Brady made an abrupt break in its own well-considered precedents. In returning to these old precedents, sounderwe believe than the new, we but restore constitutional principlesestablished to achieve a fair system of justice.' 7Escobedo v. Illinois,"s the second decision relied on by theCalifornia Supreme Court, involved a convicted murderer who wasnot permitted to consult his lawyer between the time he was takeninto custody and the completion of questioning by police. The posi-9 Id. at 462.10 Gideon v. Wainwright, 372 U.S. 335, 339 (1963).11 U.S. CONST. AMEND. VI.12 Betts v. Brady, 316 U.S. 455, 471 (1942).Is Gideon v. Wainwright, 372 U.S. 335, 340 (1963).14 287 U.S. 45 (1932).15 Id. at 68.16 Smith v. O'Grady, 312 U.S. 329 (1941); Avery v. Alabama, 308 U.S.444 (1940); Johnson v. Zerbst, 304 U.S. 458 (1938); Grosjean v. American PressCo., 297 U.S. 233 (1936).17 Gideon v. Wainwright, 372 U.S. 335, 344 (1963).18 Escobedo v. Illinois, 378 U.S. -, 84 S. Ct. 1758 (1964).[Vol. 5RIGHT TO COUNSEL IN CALIFORNIAtion taken by the state was that the right to counsel arises afterindictment. This was rejected by the court:It would exalt form over substance to make the right to counsel,under these circumstances, depend on whether at the time of interroga-tion, the authorities had secured a formal indictment. Petitioner had,for all practical purposes, already been charged with murder.' 9The Court then cited Gideon v. Wainwright2° to the effect thatevery person accused of a crime, whether state or federal, is entitledto a lawyer at trial, and to grant the rule contended for by the statewould make the trial nothing more than an appeal from the inter-rogation. In other words, granting a "right to counsel" at a formaltrial would guarantee nothing to the accused if the conviction wasalready assured by the use of statements taken during pre-trialexamination when the accused was without counsel.In Escobedo2' the court indicated that there is a time at whichan accused must either (1) be allowed counsel or (2) be advisedof his constitutional right to remain silent. That time is when theinvestigation of a crime ceases to be a general inquiry and beginsto "focus" upon the particular suspect; when the suspect is takeninto custody and a process of interrogation is begun which lendsitself to eliciting incriminating statements; or when the suspect hasrequested and is denied an opportunity to consult with his lawyer.This is the language the California Supreme Court relied on inreversing the convictions in People v. Anderson22 and People v.Dorado.'CALIFORNIA CASESIn People v. Anderson, defendant was arrested at about 7:00p.m. and accused of murder. The police interrogated him that nightand the following morning. During the morning interrogation de-fendant repeatedly requested counsel and said that without alawyer present he had nothing more to say. His requests were ig-nored and he finally admitted that he had engaged in prior sexualactivity with the victim. This admission was relied on in support ofthe charge of first degree murder.The language of the California Supreme Court was almost thesame as that in Escobedo relative to "eliciting incriminating state-19 Id. 84 S. Ct. at 1762.20 372 U.S. 335 (1963).21 378 U.S. -, 84 S. Ct. 1758 (1964).22 61 A.C. 903, 394 P.2d 945, 40 Cal. Rptr. 257 (1964).23 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr. 264 (1964).1964]SANTA CLARA LAWYERments" and in differentiating between the investigatory and accusa-tory stages of the case.24 The question of when the accused mustrequest counsel was answered as follows:Although the defendant did not immediately request counsel butinitially said he could not remember what had happened, he did notthereby forfeit his right to counsel. Before he gave the incriminatingstatements defendant asked for counsel, and such request, at theaccusatory stage, under any reading of Escobedo, is more than ample.Indeed we have held in People v. Dorado [citations omitted], atthis stage defendant need not even make the request. 25The court considered these facts determinative: (1) the inves-tigation had "focused" upon defendant; (2) he was taken intopolice custody; (3) the police carried out a process of interrogationthat lent itself to eliciting incriminating statements, without grantinghis request to consult an attorney, or without advising him of hisabsolute constitutional right to remain silent. Because of this:defendant was denied "the assistance of counsel" in violation of theSixth Amendment "made obligatory upon the states by the FourteenthAmendment" (Gideon v. Wainwright [citations omitted]) and nostatement elicited by the police during the interrogation should havebeen used against him at the trial.26In People v. Dorado27 the defendant was convicted of maliciousassault with a deadly weapon resulting in a fellow prisoner's death.Correctional officers undertook an immediate investigation and sus-picion became "focused" on defendant. Defendant was interrogatedand admitted the killing.A prison official who conducted the initial interrogation, andwho was present during the major part of defendant's interrogationby members of the district attorney's office, testified that he did notat any time inform defendant of his right to counsel, or of his rightto remain silent, nor did he hear anyone else so inform the defendant.24 "These events leave little doubt that at the time of questioning the policewere engaged in a process of interrogation that lent itself to eliciting incriminatingstatements from the accused; the police were not merely conducting a general inves-tigation of the crime .... We find no merit in the suggestion that, because defendantadmitted that he must have committed the crime but did not describe the motivation,the police were merely 'investigating' the motivation and hence had not reachedthe accusatory stage. Such a contention confuses the meaning of the investigatoryand accusatory stages. The latter begins at the point when the police have ascer-tained guilt; once the defendant admits he must have committed the crime the policeare necessarily engaged in accusatory questioning." People v. Anderson, 61 A.C.903, 906-07, 394 P.2d 945, 947, 40 Cal. Rptr. 257, 259 (1964).25 People v. Anderson, 61 A.C. 903, 907, 394 P.2d 945, 947, 40 Cal. Rptr.257, 259-60 (1964).26 Id. at 904, 394 P.2d at 946, 40 Cal. Rptr. at 258 (1964).27 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr. 264 (1964).[Vol. 5RIGHT TO COUNSEL IN CALIFORNIAThe court was then confronted with the problem of determiningwhether the confession, assumirig it was voluntary, was properlyadmitted into evidence in view of two United States Supreme Courtdecisions.2" Those cases were decided against the backdrop ofGideon v. Wainwright.' The court relied heavily on Gideon insaying:In essence the United States Supreme Court has chosen betweentwo opposing clusters of convictions delineated by Justice Frankfurterin Culombe v. Connecticut [citations omitted]. On the one hand liesthe assertion that questioning of subjects is indispensible to policework since many criminals cannot be convicted except by evidenceobtained through their admissions. . . . On the other hand lies theassumption stated by Justice Frankfurter in Watts v. Indiana [citationsomitted], that "Ours is the accusatorial as opposed to the inquisitorialsystem .... Under our system society carries the burden of proving itscharge against the accused not out of his own mouth. It mustestablish its case, not by interrogation of the accused even underjudicial safeguards, but by evidence independently secured throughskillful investigation. ' 80The court then interpreted Escobedo as concluding that once sus-picion has "focused" on the accused, and the purpose of interro-gating him is to obtain incriminating statements, he has a consti-tutional right to counsel. It also indicated that the considerationsof our accusatorial, as opposed to the inquisitorial system, outweighthose which assert that questioning of suspects is indispensable topolice work.Since Dorado did not request counsel, the court had to decidewhether this distinguished the case from Escobedo. It concludedthat it did not.... the constitutional right to counsel precludes the use of incrimina-ting statements elicited by police during an accusatory investigationunless that right is intelligently waived; no waiver can be presumedif the investigating officers do not inform the suspect of his right tocounsel or his right to remain silent.We reach this conclusion because (1) the Supreme Court ruledin Massiah that assistance of counsel under the Sixth Amendmentattaches to pre-indictment interrogations since that period is crucialto a proper defence; (2) the Supreme Court held in Escobedo that,once investigation has focused on the accused, assistance to counselis equally as important before indictment as after indictment. 3'The court found "no strength in the artificial requirement that the28 Escobedo v. Illinois, 378 U.S. -, 84 S. Ct. 1758 (1964); Massiah v. UnitedStates, 377 U.S. 201 (1964).29 372 U.S. 335 (1963).80 People v. Dorado, 61 A.C. 892, 897-98, 394 P.2d 952, 955, 40 Cal. Rptr.264, 267 (1964).81 Id. at 899, 394 P.2d at 956, 40 Cal. Rptr. 268 (1964).1964]SANTA CLARA LAWYERdefendant must specifically request counsel; the test must be a sub-stantive one: whether or not the point of necessary protection forguidance of counsel has been reached." The court added that, "Thedefendant who does not realize his rights . . .and . ..does notrequest counsel is the very defendant who most needs counsel." 2The Dorado case has evoked expressions of considerable con-cern, especially among law enforcement officers. 83 On the otherhand, as might be expected, the decisions have received wideacclaim from defense attorneys.3 4CONCLUSIONThe current state of the law in California can be summarizedas follows: Once investigation has focused upon a suspect, his rightto counsel arises. The right arises whether or not he requests con-sultation with his attorney. If he does not request counsel, he mustbe advised of his right to remain silent. Unless he intelligently waivesright to counsel or to remain silent, he has been denied a rightguaranteed him by the Constitution.Thurman L. Gray32 Ibid.33 A petition for rehearing has been granted in Dorado and the AttorneyGeneral has been joined by 55 District Attorneys in an Amici Curiae brief advancingthe following arguments: that the decision was not compelled by Escobedo v.Illinois; that the two cases are distinguishable on fact; that while Dorado was aprime suspect, he was not the "accused in the sense that term was used by theSupreme Court. The decision is further challenged on the basis that there is noconstitutional right to counsel during a police investigation and that the privilegeagainst self-incrimination is never invoked by remaining silent. The Petition alsocontends that the decision will make the enforcement of law an impossibility in manyinstances; the decision is impossible to administer and apply; the "harmless error"rule should apply in cases in which a confession or admission obtained in violation ofthe right to counsel has been received; and the rule of the Dorado case shouldbe prospective in operation.84 Amid curiae briefs have also been filed by numerous attorneys on behalf andin support of the position of defendant and appellant. The positions taken by thebriefs generally are that the court has correctly interpreted and applied Escobedov. Illinois; that the rule of law stated by the court is not impractical and will notunduly hamper law enforcement officers; that the respondent is in gross error instating there is no right to silence; that the respondent is acting as a "Prophet ofDoom;" that the interrogation of a suspect upon whom the accusatory process hasbeen focused is part of a criminal prosecution within the Sixth Amendment; thatthe courts uniformly apply retroactively decisions upholding constitutional rights;and that the "Doctrine of Escobedo may not constitutionally be limited to prospec-tive application only." Brief for Robert H. Lund, E. Fred Lightner, William T.Pillsbury, and David D. Battin of Long Beach, California, and Jim F. Kingham, Esq.of London, England, as Amici Curiae People v. Dorado, 61 A.C. 892, 394 P.2d952, 40 Cal. Rptr. 264 (1964), and Brief for National Lawyers Guild, San FranciscoChapter Amicus Curiae People v. Dorado, 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr.264 (1964).

Right to Counsel in California, The Notes and

Santa Clara Law ReviewVolume 5 | Number 2 Article 121-1-1964Recent DecisionsSanta Clara Law ReviewFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Case Note is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationSanta Clara Law Review, Case Note, Recent Decisions, 5 Santa Clara Lawyer 206 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss2/12SANTA CLARA LAWYER [Vol. 5FAMILY LAW: ADOPTED CHILD ENTITLEDTO INHERIT FROM HIS NATURAL FAMILYAS A LINEAL DESCENDANT: ESTATEOF ZOOK (CAL. 1965)In 1955 the California Legislature amended California ProbateCode Section 257 to read:An adopted child shall be deemed a descendant of one who has adoptedhim, the same as a natural child, for all purposes of succession by, fromor through the adopting parent the same as a natural parent. Anadopted child does not succeed to the estate of a natural parent whenthe relationship between them has been severed by adoption, nor doessuch natural parent succeed to the estate of such adopted child, nordoes such adopted child succeed to the estate of a relative of the naturalparent, nor does any relative of the natural parent succeed to theestate of an adopted child.An appellate court subsequently interpreted Section 257 inEstate of Dillehunt,' stating:It seems clear ...that by the amendment of the section it was theintention of the Legislature to provide that the adopted child had rightsof inheritance in the estate of his adoptive parents only, [and that] hebe granted all of the rights of a natural child with reference thereto, butthat by the adoption, his rights of inheritance from or through hisnatural parents were severed and terminated. There seems to be noroom for any other construction in the light of the express languageused.2This interpretation of Section 257 was recently approved in Estateof Goulart,a wherein the court held that there was "a completeseverance of the former relationship of the adoptee with his natural,or biological, relatives... (such as) to make them no longer 'kindred'in the eyes of the law."4Estate of Dillehunt and Estate of Goulart were cases involvingthe application of the rules of intestate succession and adoptionto the particular testamentary problems, i.e. the problem of a pre-termitted heir and the problem of an anti-lapse statute. In Estateof Zook' the Supreme Court of California had before it the problemof applying California Revenue and Taxation Code Section 13307to bequests to grandchildren who had been adopted out of the testa-1 175 Cal. App. 2d 464, 346 P.2d 245 (1959).2 Id. at 467, 346 P.2d at 246-247.3 222 Cal. App. 2d 808, 35 Cal. Rptr. 465 (1963).4 Id. at 820, 35 Cal. Rptr. at 473.5 62 A.C. 511, 399 P.2d 53, 42 Cal. Rptr. 597 (1965).RECENT DECISIONStrix' natural family. The court held that Section 257 does not oper-ate to broadly redefine the concept of lineal issue for inheritancetax purposes, and an adopted child is entitled to inherit from hisnatural family, not as a stranger, but as a "Class A" transferee. (A"Class A" transferee is a transferee who is the husband, wife, linealancestor or lineal issue of the decedent.)A cursory glance at Estate of Zook creates the impression thatSection 257 has now been specifically defined and limited to problemsinvolving intestate succession, whether the problem is basicallytestamentary or ab intestato in nature. An examination of the de-velopment of the law leading up to Section 257, and the 1955 Amend-ment, is therefore necessary to determine if Zook actually does standfor such a proposition.The earliest California statute which directly regulated inheri-tance and the adopted child was enacted in the legislative year 1869-70. The statute provided that:A child, when adopted, takes the name of the person adopting, andthe two thenceforth shall bear towards each other the legal relation ofparent and child, and the minor shall enjoy all the legal rights and besubject to all the duties appertaining to that relation; except, however,that if the adopted child leaves descendants, ascendants, brothers orsisters, the party adopting, nor his relatives, shall not inherit the estateof the adopted child, nor any part thereof .... 6In 1872 the inheritance clause of the 1869-70 Statute was excludedwhen the Legislature adopted California Civil Code Section 228.Even though the inheritance clause was excluded, Section 228 wasinterpreted as completely severing the relationship between theadopted child and his natural parents. In Estate of Jobson7 thecourt held that:... various rulings seem to establish the doctrine that the effect of anadoption under our Civil Code is to establish the legal relation of parentand child, with all the incidents and consequences of that relation, be-tween the adopting parent and the adopted child. This necessarilyimplies that the natural relationship between the child and its parentsby blood is superseded.8Estate of Jobson, in 1912, clarified the law pertaining to therelationship between the adopted child and his natural parents. Fouryears later In Re Darling9 clarified the status of the adopted childwith respect to collateral relations:STAT. OF CALIF., 1869-70, c. 385, p. 531, § 6.7 164 Cal. 312, 128 Pac. 938 (1912).8 Id. at 316-317, 128 Pac. at 939. See, e.g., Estate of Pillsbury, 175 Cal. 454, 166Pac. 11 (1917) ; Estate of Ballou, 181 Cal. 61, 183 Pac. 440 (1919).9 173 Cal. 221, 159 Pac. 606 (1916).1965]SANTA CLARA LAWYERThe adoption statutes of this state do not purport to affect the rela-tionship of any person other than that of the parents by blood, theadopting parents and the child. It is the person adopting the childwho, by the express terms of the Section, after adoption "shall sustaintowards each other the legal relation of parent and child and have allthe rights and be subject to all the duties of that relation." . . . Theadoption simply fixes the status of the child as to its former andadopted parents. To its grandparents by blood it continues to be agrandchild, and the child of its parents by blood. It does not acquirenew grandparents in the person of the father and mother of an adopt-ing parent.' 0Estate of Darling was followed until 1931 when it was codified inProbate Code Section 257:An adopted child succeeds to the estate of one who has adopted him,the same as a natural child; and the person adopting succeeds to theestate of an adopted child, the same as a natural parent. An adoptedchild does not succeed to the estate of a natural parent when the rela-tionship between them has been severed by the adoption, nor doessuch natural parent succeed to the estate of such adopted child.In maintaining the limited severance of the relationship of theadopted child and his natural parents, the court in Estate of Espo-sito" construed the terms "brother or sister," as found in ProbateCode Section 225,12 holding that "so far as the right of inheritanceis concerned, the child does not acquire new brothers and sisters inthe persons of the natural children of the adoptive parents . . . norlose the brothers and sisters of its own blood."'"In 1955 the Supreme Court followed Estate of Esposito inEstate of Calhoun4 wherein it held that "in no decision has thecourt determined the status of an adopted child as a 'brother orsister' [as to the children of the adoptive parents] within the mean-ing of Section 225 of the Probate Code."' 5 However, the court wenton to state:When the original adoption statutes were enacted, adoptions were in-frequent and most often occurred when the parents consented to theadoption of their child by persons known to them, or as consequenceof the assumption of care and custody of an orphan by a bloodrelative. Under present day conditions it may be the better socialpolicy to substitute the relationship of the adoptive family for that of10 Id. at 225-226, 159 Pac. at 608.11 57 Cal. App. 2d 859, 135 P.2d 167 (1943).12 "If the decedent leaves neither issue nor spouse, the estate goes to his parentsin equal shares, . . . or if both are dead in equal shares to his brothers and sistersand to the decendants of deceased brothers and sisters by right of representation."13 57 Cal. App. 2d at 865-866, 135 P.2d at 171.14 44 C.2d 378, 282 P.2d 880 (1955).15 Id. at 386, 282 P.2d at 885.[Vol. 5RECENT DECISIONSthe blood relatives. With many children placed for adoption by agencieslicensed for that purpose, there has developed a demand for secrecyas to the identity of the blood relatives, and in most cases, for allpractical purposes, an adopted child is entirely cut off from his naturalfamily relationships. 16This case, in part, was a factor contributing substantially to thepassage, in April 1955, of Assembly Bill 3734, which amendedProbate Code Section 257.A liberal interpretation of Section 257, as amended, would seemto sever all ties between the adopted child and his natural family.The last two disjunctives of the section (". . . nor does such adoptedchild succeed to the estate of a relative of the natural parent, nordoes any relative of the natural parent succeed to the estate of anadopted child.") seem to make the severance manifestly clear if theuse of the term "relative"' 17 by the Legislature was intended toencompass all the kindred of the natural parent. Accordingly, inEstate of Dolan18 a natural sister of the adopted child was not en-titled to succeed to any portion of an adopted child's estate, sincefollowing his adoption she was no longer related to him for purposesof succession.'"Section 257 also precludes an adopted child from being a pre-termitted heir with respect to his natural family.2" Where the sonof a deceased child was adopted by another person before the deathof the natural grandparent, whose will made no mention of the sonor deceased father, the court held "the law at the time of the deathof the testator governs, [1957], and accordingly appellant is not anheir at law and not a pretermitted heir."'"In Estate of Goulart22 the court held that California ProbateCode Section 92 (the anti-lapse statute) could not prevent failureof devises to natural brothers and sisters of an adopted testatrixbecause under Section 257 the natural brothers and sisters of thetestatrix were no longer her kindred. In defining kindred the courtstated:The word "kindred" is not defined in the Probate Code. Although noamendment to section 92 has been made, it appears that the Legislature16 Id. at 387, 282 P.2d at 886.17 BLAcK's LAw DICTIONARY (4th ed. 1951) defines relative as "a kinsman; aperson connected with another by blood or affinity."18 169 Cal. App. 2d 628, 337 P.2d 498 (1959).19 See, e.g., Estate of Serventi, 190 Cal. App. 2d 514, 12 Cal. Rptr. 206 (1961)(which held the petitioner, an adopted child, would not succeed to any portion inthe estate of the brother of his predeceased father) ; Estate of Garey, 214 Cal. App.2d 39, 29 Cal. Rptr. 98 (1963).20 Estate of Dillehunt, 175 Cal. App. 2d 464, 346 P.2d 245 (1959).21 Id. at 468, 346 P.2d at 248.22 222 Cal. App. 2d 808, 35 Cal. Rptr. 465 (1963).1965]SANTA CLARA LAWYERintended to create new kindred for the adoptee. We believe that thisconclusion follows from (1) the new policy of the state in respect ofadoptions, as shown by the history of the 1955 amendment to section257 of the Probate Code, (2) the trend of judicial decisions, and (3)the logical consequence of construing the word "kindred" as applyingexclusively to the new, or adoptive familial relationship.2CONCLUSIONAfter examining the development of the law before and afterthe 1955 amendment to Section 257, there seems to emerge in thestatutes and case law a certain consonance of thought, and applica-tion of a basic social objective. This objective seems to be the pro-tection of the adopted child in those cases where the ties of afamily relationship have, for all practical purposes, been severed.This protection is to be afforded by the complete severance of therelationship of the adopted child to his natural family. The statutes,codes and cases preceeding Estate of Zook dealt specifically withsituations where the adoptee and/or the adoptee's natural familywere not specifically proclaimed or recognized in the testamentarydisposition of the other. And, though a case may have had as a basicissue a particular testamentary disposition, the issue of the adopteeor the adoptee's natural family has arisen under questions involvingthe application of the rules of intestate succession.In Estate of Zook, there is the distinct difference of a bequestrecognizing the testatrix' grandchildren, notwithstanding their adop-tion out of the family. The court, in recognizing this distinguishingfeature, stated:Usually, or often, an adoption situation involves the severance, in factas well as in law, of one set of parental bonds and the replacementthereof by another. The law of intestate succession, in section 257,recognizes this usual attitude. But in a situation where, as here, bywill, a testatrix has proclaimed her intention to observe the naturalbonds, the situation may well demand different treatment. This shouldbe particularly true where the textatrix was not a party to the adoptionand thus could not be deemed to have voluntarily or constructivelysevered her natural family bonds with the child. By continuing to beartoward such child the attitude of affection which generally accompaniesa specific bequest, the ties between the child and the testatrix cannotbe said to have been severed in fact as they have been in law.24Thus it appears that the court's narrow construction of Section 257has resulted, for purposes of taxation, at least, in fulfilling both thelegal and social needs of the adopted child and his natural andadopted families and relatives.William Moore23 Id. at 820, 35 Cal. Rptr. at 473.24 62 A.C. 511, 514-515, 399 P.2d 53, 56, 42 Cal. Rptr. 597, 600.

Santa Clara Law ReviewVolume 5 | Number 2 Article 101-1-1964Recent DecisionsSanta Clara Law ReviewFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Case Note is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationSanta Clara Law Review, Case Note, Recent Decisions, 5 Santa Clara Lawyer 199 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss2/10RECENT DECISIONSthe state law insofar as the property interests of the widow createdby state law are concerned.' 3The district court in Bray held Yiatchos to be controlling andthat the transfer of the bonds was in violation of California CivilCode Section 172. The son was ordered to account for the funds im-properly transferred.CONCLUSIONFederal law will govern the ownership of United States SavingsBonds, except when such a determination of ownership will actto deprive the widow of a property right which is granted to herby state law. To defeat the survivorship provisions of United StatesBonds, fraud, measured by Federal standards, but guided by stateproperty law, must be present. Bray could not have disposed ofthese funds during his life without his wife's permission, nor mayhe do so at death under the protection of the Supremacy Clause ofthe Federal Constitution.Frank MillsCONSTITUTIONAL LAW: RIGHT TOCOUNSEL IN MISDEMEANORCASES: IN RE JOHNSON(CAL. 1965)In recent years there has been considerable judicial expansionof the right to counsel, particularly with the decision in Gideon v.Wainwright' making the Sixth Amendment counsel provision applic-able to the states through the due process clause of the FourteenthAmendment. One aspect of the problem that remains unclear iswhether the Fourteenth Amendment requires a state to appointcounsel to defend an indigent charged with a misdemeanor.The California Constitution and Penal Code also provide forthe right to counsel. Article 1, Section 13, of the state constitutionprovides that "In criminal prosecutions, in any court whatever, theparty accused shall have the right . . . to appear and defend, inperson and with counsel." In addition Sections 859 and 987 of thePenal Code provide for court appointment of counsel:13 376 U.S. 306, 309 (1964).1 372 U.S. 335 (1963).19651SANTA CLARA LAWYERWhen the defendant is charged with commission of a publicoffense, over which the superior court has original jurisdiction ...if the defendant desires and is unable to employ counsel, the courtmust assign counsel to defend him. 2If the defendant appears for arraignment without counsel, hemust be informed by the court that it is his right to have counselbefore being arraigned, and must be asked if he desires the aidof counsel. If he desires and is unable to employ counsel, the courtmust assign counsel to defend him.3Despite the seemingly clear language of these statutes, theCalifornia cases present a confusing picture of the basis and scopeof the right to appointed counsel in misdemeanor cases.In People v. Agnew,4 the defendant's request for appointedcounsel was denied and the defendant was subsequently convicted.The appellate court reversed the conviction on the ground that thedefendant had been unconstitutionally denied the right to counsel.The basis of the court's decision is somewhat ambiguous. The courtspeaks of Article 1, Section 13, of the California Constitution asgranting the right to counsel, but also discusses at length the dueprocess requirements of the Fourteenth Amendment. It is not clearfrom the decision whether the court relied on the federal or stateconstitution in reversing the conviction.'In Re Newbern,6 another misdemeanor case, dealt primarilywith the courts' duty to advise a criminal defendant of its right tocounsel and the requirement that counsel be allowed sufficient timeto effectively prepare the case. The court in Newbern cited PenalCode Section 859 as requiring counsel to be appointed in all caseswhere the accused is financially unable to employ counsel. Thecourt's interpretation of section 859 disregards the express languagelimiting its applicability to cases within the jurisdiction of the su-perior courts.The recent case of In Re Johnson7 effectively resolves the am-biguity of the Agnew decision and clarifies the interpretation ofPenal Code Section 859. Johnson was convicted of multiple trafficoffenses and sentenced to serve consecutive terms of 180 days on eachof five complaints. The facts indicate that Johnson appeared at thetrial court with numerous other individuals charged with trafficoffenses. Johnson was unrepresented by counsel. The assembled de-2 CAL. PEN. CODE § 859.3 CAL. PEN. CODE § 987.4 114 Cal. App. 2d 841, 250 P.2d 369 (1952).r See Note, The Right to Counsel in Misdemeanor Cases, 48 CALIF. L. REV. 501(1960).0 53 Cal. 2d 786, 350 P.2d 116, 3 Cal. Rptr. 364 (1960).7 62 A.C. 336, 398 P.2d 420, 42 Cal. Rptr. 228 (1965).[Vol. 5RECENT DECISIONSfendants were collectively advised of their constitutional rights andthen individually arraigned. Johnson entered pleas of guilty to allfive complaints; he was then held in the court room until the con-clusion of the remaining cases at which time sentence was imposed.Johnson petitioned for a writ of habeas corpus contending thathe was not adequately advised of his constitutional rights and that hehad made no valid waiver of his right to counsel. His petition wassustained by the Supreme Court on the ground that he had notwaived his right to counsel. The court held that his plea of guilty wasnot conclusive of waiver; and that the fact of waiver should bedetermined before the court accepts any plea.The court relied on Article 1, Section 13 of the state constitu-tion as the basis of Johnson's right to counsel:Under this provision there can be no doubt that the fundamentalconstitutional right to counsel at all stages of the proceedings is, inCalifornia at least, not limited to felony cases but is equally guaranteedto persons charged with misdemeanors in a municipal or other in-ferior court.8In a note to the court's decision in the Johnson case, the courtexplains the interpretation of Penal Code Section 859 as appliedearlier in Newbern and following in Johnson.Although on its face section 859 applies only to cases "over which thesuperior court has original jurisdiction" it is declaratory in this respectof the several duties of the magistrate which give meaning and effectto the constitutional guarantee of counsel "in any court whatever." 9In summary, the clear import of the Johnson case is that thereis a right to a court appointed counsel in misdemeanor cases, whichright arises under Article 1, Section 13 of the state constitution andexists independent of the federal Constitution. In addition PenalCode Sections 859 and 987 are not to be construed as limiting thescope of the constitutional policy in any way; their purpose is todefine the duties of the court in implementing the constitutionalprovision.Frank Clohans Id. at 340, 398 P.2d at 422.9 Id. at 341, n.2, 398 P.2d at 423, n.2.1965]

Santa Clara Law ReviewVolume 5 | Number 1 Article 211-1-1964Recent LegislationSanta Clara Law ReviewFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in SantaClara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationSanta Clara Law Review, Recent Legislation, 5 Santa Clara Lawyer 81 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss1/21RECENT LEGISLATIONGOVERNMENTAL LIABILITY FOR TORTSOF EMPLOYEES-THE END OFSOVEREIGN IMMUNITY INCALIFORNIAIn 1963 the California Legislature enacted the first general lawdealing with the liability of governmental entities for the torts oftheir employees.' The basic objective was to immunize govern-mental entities. Liability would attach only by statutory exception,as determined by the Legislature.' Sovereign immunity, an ancientcommon law doctrine largely rejected in other important jurisdic-tions, was to be reaffirmed in California law. This objective wasnot attained. Rather than general immunity, the concept of generalliability has resulted. Immunity, instead of liability, attaches onlyby statutory exception. It is the purpose of this article to examinethose provisions of the 1963 enactment which bring to an end thedoctrine of sovereign immunity in California.4THE PROBLEMThe California Supreme Court decided two cases early in 1961which evoked an immediate reaction from the California Legislature.In Muskopj v. Corning Hospital District5 the court held that thedoctrine of sovereign immunity would no longer protect publicentities from civil liability for their torts. The Supreme Court inLipman v. Brisbane Elementary School District6 stated that thedoctrine of discretionary immunity, which protects public employeesfrom liability for their discretionary acts, might not protect publicentities from liability in all situations where the employees are im-mune. The Legislature reacted at once, passing Chapter 1404 of theStatutes of 1961, which suspended the effect of these decisions until1 CAL. Gov'T CODE §§ 810-895.8.2 4 Cal. Law Revision Comm'n Rep., Rec. & Studies 811 (1963).8 Id. at 812.4 Other bills passed in Stats. 1963 include:Chapter 1715, Claims, Actions and Judgments against Public Entities and PublicEmployees. Chapter 1682, Insurance Coverage for Public Entities and Public Em-ployees. Chapter 1683, Defense of Public Employees. Chapter 1684, Workmen'sCompensation Benefits for Persons Assisting Law Enforcement or Fire ControlOfficers.6 55 Cal.2d 211, 359 P.2d 457, 11 Cal. Rptr. 89 (1961).6 55 Cal.2d 224, 359 P.2d 465, 11 Cal. Rptr. 97 (1961).SANTA CLARA LAWYERthe ninety-first day after the final adjournment of the 1963 Legisla-ture. For the next two years the California Law Revision Commis-sion studied the problem of sovereign immunity. It submitted propo-sals to the 1963 session of the Legislature, most of which were en-acted into law with minor changes. 7 The most important provisionstates that a public entity is liable for the tort of its employeewithin the scope of his employment, to the extent that the employeeis personally liable, and, unless an enactment declares a contraryrule, the entity is immune from liability for an act or omission of itsemployee if the employee himself is immune from liability.8 Ofthe many provisions conferring immunity, the most significantprovides that a public employee is not liable for discretionary actswithin the scope of his employment.'These provisions have a twofold effect: (1) the entity is liableas a private person except where given immunity by statute;(2) the liability of both entity and employee is based on the deter-mination of whether the act of the employee is discretionary orministerial. Therefore, the question is: What is a discretionary act?The Background: Discretionary v. MinisterialPrior to 1961 California law regarding the liability of a publicentity for the torts of a public employee was determined by oneof two related doctrines. An entity was liable for proprietary activ-ities, and immune from liability for strictly governmental activities.'"An employee was liable for ministerial actions, and immune fromliability for discretionary acts." Generally, the protection grantedto the employee, for torts resulting from discretionary acts or omis-sions, extended also to the employer.'"Both Muskopf and Lipman left untouched the "discretionaryact" rule to the extent that it protected the employee. However,the protection formerly available to the public entity was abolished.Muskopf imposed general liability upon the public entity, therebyeliminating the need to determine whether the activity involvedwas proprietary or governmental. Lipman suggested that the lia-bility of the entity would not be coextensive with the liability ofthe employee-tortfeasor, but would depend upon various other fac-tors-the importance of the public functions, the extent to whichliability might impair free exercise of these functions, and the7 4 Cal. Law Revision Comm'n Rep., Rec. & Studies Report, at 219-224 (1963).8 See note 3 supra.9 Ibid.10 PROSSER, TORTS, 774 (2d ed. 1955).11 id. at 781.12 See note 2 supra, at 815.[Vol. 5GOVERNMENTAL LIABILITYpresence of remedies other than tort suits for damages."8 UnderLipman a finding that the employee's act was discretionary wouldnot protect the entity. It would have been necessary to show inaddition that some vital public interest would be threatened ifimmunity was denied the entity. The 1963 enactment foreclosesthis possibility by providing that a public entity is not liable foran injury resulting from an act or omission of its employee wherethe employee is immune from liability. 4Under the liability provisions of the new legislation, the em-ployee is liable as a private person for his tortious conduct unlessotherwise provided, and he is accorded the defenses normally avail-able to private persons.'5 The primary exception is for discretionaryacts.' 6 Under the same provisions, the entity is liable if the em-ployee is liable, and is immune if the employee is immune. 7 Theentity is liable as a private person, therefore, except where im-munity has been granted by statutory exception. The question thatwill continue to confront the California courts is whether the actor omission was discretionary or ministerial.One of the purposes of the new legislation was to restate thepre-existing law on discretionary immunity.'8 A brief review ofthe California decisions indicates that the doctrine of discretionaryimmunity, like the concept of the reasonable and prudent man, isoften mentioned but only vaguely understood.' 9 A need to protectpublic officials from damage suits when injuries result from theexercise of official judgment and discretion has long been recog-nized.2" But there has been little uniformity in applying the doc-trine to specific cases. The modern trend seems to protect publicemployees who act in good faith in exercising discretion, but towithhold protection when bad faith is encountered. 2The pre-existing law on discretionary immunity may be sum-marized as follows: 1. Any exercise of judgment may be construedas discretionary. Proof that the duty was unqualifiedly required isusually necessary in order to establish liability.22 A workable con-13 55 Cal.2d 224, 359 P.2d 465, 11 Cal. Rptr. 97 (1961).14 CAL. GOV'T CODE § 815.2(b).15 CAL. Gov'T CODE § 820.16 CAL. Gov'T CODE § 820.2.17 CAL. Gov'T CODE § 815.2.18 See note 2 supra, at 843.19 Ham v. Los Angeles County, 46 Cal. App. 148, 189 Pac. 462 (1920).20 Downer v. Lent, 6 Cal. 94 (1854).21 Galli v. Brown, 110 Cal. App. 2d 764, 243 P.2d 920 (1952).22 In Ham v. Los Angeles County, 46 Cal. App. 148, 189 Pac. 462 (1920), thecourt stated:It would seem a fair application of the rule would be that any duty isministerial which unqualifiedly requires the doing of a certain thing. To the1964]SANTA CLARA LAWYERcept of discretionary action does not exist in California law. 2. Scopeof authority includes anything collateral or incidental to the mainduty of the office of the person acting, thereby creating a strongdefense to the argument of ultra vires.2" 3. The prevailing view isthat the employee who acts within the scope of his authority inperforming a discretionary duty will be immune from liability, evenif motivated by malice, dishonesty, corruption or carelessness.24A strong and continuing minority holds to the contrary.25 Thelegislation of 1963 deals with each of these characteristics in thepre-existing California law.Discretionary Immunity, Scope of Employment andImproper Motive after 1963 LegislationThe Legislature did not define discretionary immunity. Thescope of employment, however, has been clarified by provisionsdealing with activities which the case law protected as discretionary.The purpose of these provisions is to help determine the scope ofemployment without having to rely on piecemeal judicial decisions,and to prevent the courts from redefining discretionary immunityto exclude these acts previously considered discretionary.2" Thescope of immunity includes the following types of activities: execu-tion or enforcement of any law, or enforcement of enactmentswhich are unconstitutional, invalid, or inapplicable; adoption orfailure to adopt enactments; issuance, revocation or denial oflicenses, permits and certificates of authorization; health and safetyinspections of private property; injuries caused by other persons;prosecution of judicial or administrative proceedings; authorizedextent that its performance is unqualifiedly required, it is not discretionary,even though the manner of its performance may be discretionary.In Doeg v. Cook, 126 Cal. 213, 58 Pac. 707 (1899), the court defined a ministerialact as non-feasance or negligence in performing a duty which is plain, when themeans and ability to perform it are shown, and when the performance or non-performance, or the manner of its performance involves no question of discretion.23 55 Cal.2d 224, 359 P.2d 465, 11 Cal. Rptr. 97 (1961).24 Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494 (1957); Lipman v. BrisbaneElementary School District, 55 Cal.2d 224, 359 P.2d 457, 11 Cal. Rptr. 89 (1961).In 77 HARV. L. REV. 224, Louis L. Jaffe states that in California immunity is abso-lute unless the officer has acted outside, or in defiance of, the established formal rulesor in ways clearly beyond his competence.25 Dillwood v. Riecks, 42 Cal. App. 602, 184 Pac. 35 (1919) (public officerliable for negligence even though act was discretionary). See also Silva v. MacAuley,135 Cal. App. 249, 26 P.2d 887, rehearing denied, 27 P.2d 791 (1933), and Collenbergv. County of Los Angeles, 150 Cal. App. 2d 795, 310 P.2d 989 (1957), holding thatimmunity of a county from liability for negligence does not relieve employees fromindividual liability. (The effect of this decision may be nullified by the 1963 legisla-tion making employee and entity liability coextensive.)26 See note 1 supra, § 812.[Vol. 51964] GOVERNMENTAL LIABILITYentries upon private property; money stolen from official custody;misrepresentation.27An important final consideration is the standard of care re-quired of the employee. This appears to vary with the type ofactivity. Due care is required in the execution of a law; goodfaith for acting under an enactment which is invalid, inapplicableor unconstitutional; good faith and probable cause for institutingor prosecuting a judicial or administrative proceeding (under an-other provision the entity is liable but can obtain indemnity fromthe offending employee).28 The employee must indemnify the entityfor recoveries made against the entity for the acts of the employee27 CAL. Gov'T CODE § 820.4. A public employee is not liable for his act oromission, exercising due care, in the execution or enforcement of any law. Nothingin this section exonerates a public employee from liability for false arrest or falseimprisonment.§ 820.6. If a public employee acts in good faith, without malice, and under theapparent authority of an enactment that is unconstitutional, invalid or inapplicable,he is not liable for an injury caused thereby except to the extent that he wouldhave been liable had the enactment been constitutional, valid and applicable.§ 820.8. Except as otherwise provided by statute, a public employee is not liablefor injury caused by the act or omission of another person. Nothing in this sectionexonerates a public employee from liability for injury proximately caused by hisown negligent or wrongful act or omission.§ 821. A public employee is not liable for an injury caused by his adoptionof or failure to adopt an enactment or by his failure to enforce an enactment.§ 821.2. A public employee is not liable for an injury caused by his issuance, denial,suspension or revocation of, or by his failure or refusal to issue, deny, suspend orrevoke, any permit, license, certificate or similar authorization where he is authorizedby enactment to determine whether or not such authorization should be issued,denied, suspended or revoked.§ 821.4. A public employee is not liable for injury caused by his failure tomake an inspection, or to make an adequate inspection, of any property, other thanthe property of the public entity employing the public employee, for the purpose ofdetermining whether the property complies with or violates any enactment or con-tains or constitutes a hazard to health or safety.§ 821.6. A public employee is not liable for injury caused by his instituting orprosecuting any judicial or administrative proceeding wthin the scope of his employ-ment, even if he acts maliciously and without probable cause.§ 821.8. A public employee is not liable for an injury arising out of his entryupon any property where such entry is expressly or impliedly authorized by law.Nothing in this section exonerates a public employee from liability for an injuryproximately caused by his own negligent or wrongful act or omission.§ 822. A public employee is not liable for money stolen from his official custodyunless the loss was sustained as a result of his own negligent or wrongful act oromission.§ 822.2. A public employee is not liable for misrepresentation unless he is guiltyof actual fraud, corruption or actual malice.See also CAL. GOV'T CODE §§ 830.2, 830.4, 830.6, 830.8, 831, 831.2, 831.4, 831.6,831.8, and 840.28 CAL. GOv'T CODE § 825.6.(a) If a public entity pays any claim or judgment, or any portion thereof,either against an employee or former employee of the public entity, for aninjury arising out of an act or omission of the employee or former employeeof the public entity, the public entity may recover from the employee orSANTA CLARA LAWYER [Vol. Sinvolving actual fraud, corruption or actual malice.29 While thiswould seem to apply only to malicious prosecution and possiblyto action under an invalid enactment, the question arises as towhether this may be a minimum standard bearing upon other typesof tortious conductY0CONCLUSIONThe California Legislature has adopted a policy of generalliability for torts committed by public employees and for the enti-ties in whose behalf they perform. But even if general immunitywere found, while the doctrine of discretionary immunity remains,either as an exception to general liability, or as the norm of generalimmunity, the practicing attorney and the courts will be facedwith the task of determining whether this doctrine is or shouldbe the proper basis for liability.lames V. Arnoldformer employee the amount of such payment if he acted or failed to actbecause of actual fraud, corruption or actual malice. Except as provided insubdivision (b), a public entity may not recover any payments made upon ajudgment or claim against an employee or former employee if the publicentity conducted his defense against the action or claim.(b) If a public entity pays any claim or judgment, or any portion thereof,against an employee or former employee of the public entity for an injuryarising out of his act or omission, and if the public entity conducted hisdefense against the claim or action pursuant to an agreement with himreserving the rights of the public entity against him, the public entity mayrecover the amount of such payment from him unless he establishes that theact or omission upon which the claim or judgment is based occurred withinthe scope of his employment as an employee of the public entity and thepublic entity fails to establish that he acted or failed to act because ofactual fraud, corruption or actual malice.29 Ibid.80 5 Cal. Law Revision Comm'n Rep., Rec. § Studies 259 (1963). Arno VanAlstyne, the author of the study upon which the 1963 legislation was based, statesthat as a general rule public officials should not be immune from suit or personalliability for malicious and corrupt acts.

Recent Legislation

Santa Clara Law ReviewVolume 5 | Number 1 Article 71-1-1964The Right to Counsel in CaliforniaThurman L. GrayFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Comment is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationThurman L. Gray, Comment, The Right to Counsel in California, 5 Santa Clara Lawyer 75 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss1/7THE RIGHT TO COUNSEL IN CALIFORNIATwo recent decisions' by the California Supreme Court mayhave a profound effect upon the handling of future criminalcases during the investigatory and accusatory stages, and upon theadmissability of evidence gathered during those stages. Both caseswere decided on August 31, 1964, and each reversed a convictionfor murder. The reversible error, and the one with which this paperis concerned, was that the defendant was denied his constitutionalright "to have the Assistance of Counsel for his defence."'FEDERAL CASESThe California court relied heavily upon two decisions by theUnited States Supreme Court.' The first case, Gideon v. Wainwright,involved a defendant charged with the commission of a non-capitalfelony. He appeared in court without funds and asked the court toappoint counsel for him. His request was denied on the ground thatFlorida law permitted appointment for indigent defendants in capitalcases only. The defendant conducted his own defense and was con-victed. After the Florida Supreme Court denied his application fora writ of habeas corpus, he applied to the Supreme Court of theUnited States. The Supreme Court appointed counsel for him and"requested both sides to discuss in their briefs and arguments,'Should the Court's holding in Betts v. Brady be reconsidered.' "IThe Betts case held that a "refusal to appoint counsel for anindigent defendant did not necessarily violate the Due ProcessClause of the Fourteenth Amendment."5Asserted denial (of due process) is to be tested by an appraisal of thetotality of facts in a given case. That which may, in one setting,constitute a denial of fundamental fairness, shocking to the universalsense of justice, may, in other circumstances, and in the light of otherconsiderations fall short of such denial. 6The opinion in Gideon' stated that since the Court in Betts8 treated1 People v. Anderson, 61 A.C. 903, 394 P.2d 945, 40 Cal. Rptr. 257 (1964),and People v. Dorado, 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr. 264 (1964). TheAttorney General has petitioned for and the court has granted a rehearing of Peoplev. Dorado. See infra notes 32-33.2 U.S. CONST. AMEND. VI.3 Escobedo v. Illinois, 378 U.S. -, 84 S. Ct. 1758 (1964) and Gideon v.Wainwright, 372 U.S. 335 (1963).4 Gideon v. Wainwright, 372 U.S. 335, 338 (1963).5 U.S. Const. Amend. XIV.6 Betts v. Brady, 316 U.S. 455, 462 (1942).7 Gideon v. Wainwright, 372 U.S. 335 (1963).8 Betts v. Brady, 316 U.S. 455 (1942).75SANTA CLARA LAWYERDue Process as a "concept less rigid and more fluid than those en-visaged in other specific and particular provisions of the Bill ofRights,"9 and since "the facts and circumstances are so nearly in-distinguishable, we think the Betts v. Brady holding if left standingwould require us to reject Mr. Gideon's claim that the Constitutionguarantees him the assistance of counsel."'" But the Court did notagree with the prior interpretation of Due Process and concludedthat Betts should be overruled.The Court next considered whether "right to counsel" in theSixth Amendment" is made obligatory upon the states by theFourteenth Amendment. Referring to Betts, which held that "ap-pointment of counsel is not a fundamental right, essential to a fairtrial,"' 2 the Court said:Plainly, had the Court concluded that appointment of counsel for anindigent criminal defendant was 'a fundamental right, essential to afair trial,' it would have held that the Fourteenth Amendment re-quires appointment of counsel in a state court, just as the SixthAmendment requires in a federal court.1"In support of its position, the Court cited Powell v. Alabama 4 where-in the Court considered all the historical data examined in Bettsand unequivocally declared that "the right to the aid of counsel isof this fundamental character."' " The fundamental nature of theright was re-emphasized in later cases.'"In reversing the state court's decision, the Court concluded bysaying:[T]he Court in Betts v. Brady made an abrupt break in its own well-considered precedents. In returning to these old precedents, sounderwe believe than the new, we but restore constitutional principlesestablished to achieve a fair system of justice.' 7Escobedo v. Illinois,"s the second decision relied on by theCalifornia Supreme Court, involved a convicted murderer who wasnot permitted to consult his lawyer between the time he was takeninto custody and the completion of questioning by police. The posi-9 Id. at 462.10 Gideon v. Wainwright, 372 U.S. 335, 339 (1963).11 U.S. CONST. AMEND. VI.12 Betts v. Brady, 316 U.S. 455, 471 (1942).Is Gideon v. Wainwright, 372 U.S. 335, 340 (1963).14 287 U.S. 45 (1932).15 Id. at 68.16 Smith v. O'Grady, 312 U.S. 329 (1941); Avery v. Alabama, 308 U.S.444 (1940); Johnson v. Zerbst, 304 U.S. 458 (1938); Grosjean v. American PressCo., 297 U.S. 233 (1936).17 Gideon v. Wainwright, 372 U.S. 335, 344 (1963).18 Escobedo v. Illinois, 378 U.S. -, 84 S. Ct. 1758 (1964).[Vol. 5RIGHT TO COUNSEL IN CALIFORNIAtion taken by the state was that the right to counsel arises afterindictment. This was rejected by the court:It would exalt form over substance to make the right to counsel,under these circumstances, depend on whether at the time of interroga-tion, the authorities had secured a formal indictment. Petitioner had,for all practical purposes, already been charged with murder.' 9The Court then cited Gideon v. Wainwright2° to the effect thatevery person accused of a crime, whether state or federal, is entitledto a lawyer at trial, and to grant the rule contended for by the statewould make the trial nothing more than an appeal from the inter-rogation. In other words, granting a "right to counsel" at a formaltrial would guarantee nothing to the accused if the conviction wasalready assured by the use of statements taken during pre-trialexamination when the accused was without counsel.In Escobedo2' the court indicated that there is a time at whichan accused must either (1) be allowed counsel or (2) be advisedof his constitutional right to remain silent. That time is when theinvestigation of a crime ceases to be a general inquiry and beginsto "focus" upon the particular suspect; when the suspect is takeninto custody and a process of interrogation is begun which lendsitself to eliciting incriminating statements; or when the suspect hasrequested and is denied an opportunity to consult with his lawyer.This is the language the California Supreme Court relied on inreversing the convictions in People v. Anderson22 and People v.Dorado.'CALIFORNIA CASESIn People v. Anderson, defendant was arrested at about 7:00p.m. and accused of murder. The police interrogated him that nightand the following morning. During the morning interrogation de-fendant repeatedly requested counsel and said that without alawyer present he had nothing more to say. His requests were ig-nored and he finally admitted that he had engaged in prior sexualactivity with the victim. This admission was relied on in support ofthe charge of first degree murder.The language of the California Supreme Court was almost thesame as that in Escobedo relative to "eliciting incriminating state-19 Id. 84 S. Ct. at 1762.20 372 U.S. 335 (1963).21 378 U.S. -, 84 S. Ct. 1758 (1964).22 61 A.C. 903, 394 P.2d 945, 40 Cal. Rptr. 257 (1964).23 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr. 264 (1964).1964]SANTA CLARA LAWYERments" and in differentiating between the investigatory and accusa-tory stages of the case.24 The question of when the accused mustrequest counsel was answered as follows:Although the defendant did not immediately request counsel butinitially said he could not remember what had happened, he did notthereby forfeit his right to counsel. Before he gave the incriminatingstatements defendant asked for counsel, and such request, at theaccusatory stage, under any reading of Escobedo, is more than ample.Indeed we have held in People v. Dorado [citations omitted], atthis stage defendant need not even make the request. 25The court considered these facts determinative: (1) the inves-tigation had "focused" upon defendant; (2) he was taken intopolice custody; (3) the police carried out a process of interrogationthat lent itself to eliciting incriminating statements, without grantinghis request to consult an attorney, or without advising him of hisabsolute constitutional right to remain silent. Because of this:defendant was denied "the assistance of counsel" in violation of theSixth Amendment "made obligatory upon the states by the FourteenthAmendment" (Gideon v. Wainwright [citations omitted]) and nostatement elicited by the police during the interrogation should havebeen used against him at the trial.26In People v. Dorado27 the defendant was convicted of maliciousassault with a deadly weapon resulting in a fellow prisoner's death.Correctional officers undertook an immediate investigation and sus-picion became "focused" on defendant. Defendant was interrogatedand admitted the killing.A prison official who conducted the initial interrogation, andwho was present during the major part of defendant's interrogationby members of the district attorney's office, testified that he did notat any time inform defendant of his right to counsel, or of his rightto remain silent, nor did he hear anyone else so inform the defendant.24 "These events leave little doubt that at the time of questioning the policewere engaged in a process of interrogation that lent itself to eliciting incriminatingstatements from the accused; the police were not merely conducting a general inves-tigation of the crime .... We find no merit in the suggestion that, because defendantadmitted that he must have committed the crime but did not describe the motivation,the police were merely 'investigating' the motivation and hence had not reachedthe accusatory stage. Such a contention confuses the meaning of the investigatoryand accusatory stages. The latter begins at the point when the police have ascer-tained guilt; once the defendant admits he must have committed the crime the policeare necessarily engaged in accusatory questioning." People v. Anderson, 61 A.C.903, 906-07, 394 P.2d 945, 947, 40 Cal. Rptr. 257, 259 (1964).25 People v. Anderson, 61 A.C. 903, 907, 394 P.2d 945, 947, 40 Cal. Rptr.257, 259-60 (1964).26 Id. at 904, 394 P.2d at 946, 40 Cal. Rptr. at 258 (1964).27 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr. 264 (1964).[Vol. 5RIGHT TO COUNSEL IN CALIFORNIAThe court was then confronted with the problem of determiningwhether the confession, assumirig it was voluntary, was properlyadmitted into evidence in view of two United States Supreme Courtdecisions.2" Those cases were decided against the backdrop ofGideon v. Wainwright.' The court relied heavily on Gideon insaying:In essence the United States Supreme Court has chosen betweentwo opposing clusters of convictions delineated by Justice Frankfurterin Culombe v. Connecticut [citations omitted]. On the one hand liesthe assertion that questioning of subjects is indispensible to policework since many criminals cannot be convicted except by evidenceobtained through their admissions. . . . On the other hand lies theassumption stated by Justice Frankfurter in Watts v. Indiana [citationsomitted], that "Ours is the accusatorial as opposed to the inquisitorialsystem .... Under our system society carries the burden of proving itscharge against the accused not out of his own mouth. It mustestablish its case, not by interrogation of the accused even underjudicial safeguards, but by evidence independently secured throughskillful investigation. ' 80The court then interpreted Escobedo as concluding that once sus-picion has "focused" on the accused, and the purpose of interro-gating him is to obtain incriminating statements, he has a consti-tutional right to counsel. It also indicated that the considerationsof our accusatorial, as opposed to the inquisitorial system, outweighthose which assert that questioning of suspects is indispensable topolice work.Since Dorado did not request counsel, the court had to decidewhether this distinguished the case from Escobedo. It concludedthat it did not.... the constitutional right to counsel precludes the use of incrimina-ting statements elicited by police during an accusatory investigationunless that right is intelligently waived; no waiver can be presumedif the investigating officers do not inform the suspect of his right tocounsel or his right to remain silent.We reach this conclusion because (1) the Supreme Court ruledin Massiah that assistance of counsel under the Sixth Amendmentattaches to pre-indictment interrogations since that period is crucialto a proper defence; (2) the Supreme Court held in Escobedo that,once investigation has focused on the accused, assistance to counselis equally as important before indictment as after indictment. 3'The court found "no strength in the artificial requirement that the28 Escobedo v. Illinois, 378 U.S. -, 84 S. Ct. 1758 (1964); Massiah v. UnitedStates, 377 U.S. 201 (1964).29 372 U.S. 335 (1963).80 People v. Dorado, 61 A.C. 892, 897-98, 394 P.2d 952, 955, 40 Cal. Rptr.264, 267 (1964).81 Id. at 899, 394 P.2d at 956, 40 Cal. Rptr. 268 (1964).1964]SANTA CLARA LAWYERdefendant must specifically request counsel; the test must be a sub-stantive one: whether or not the point of necessary protection forguidance of counsel has been reached." The court added that, "Thedefendant who does not realize his rights . . .and . ..does notrequest counsel is the very defendant who most needs counsel." 2The Dorado case has evoked expressions of considerable con-cern, especially among law enforcement officers. 83 On the otherhand, as might be expected, the decisions have received wideacclaim from defense attorneys.3 4CONCLUSIONThe current state of the law in California can be summarizedas follows: Once investigation has focused upon a suspect, his rightto counsel arises. The right arises whether or not he requests con-sultation with his attorney. If he does not request counsel, he mustbe advised of his right to remain silent. Unless he intelligently waivesright to counsel or to remain silent, he has been denied a rightguaranteed him by the Constitution.Thurman L. Gray32 Ibid.33 A petition for rehearing has been granted in Dorado and the AttorneyGeneral has been joined by 55 District Attorneys in an Amici Curiae brief advancingthe following arguments: that the decision was not compelled by Escobedo v.Illinois; that the two cases are distinguishable on fact; that while Dorado was aprime suspect, he was not the "accused in the sense that term was used by theSupreme Court. The decision is further challenged on the basis that there is noconstitutional right to counsel during a police investigation and that the privilegeagainst self-incrimination is never invoked by remaining silent. The Petition alsocontends that the decision will make the enforcement of law an impossibility in manyinstances; the decision is impossible to administer and apply; the "harmless error"rule should apply in cases in which a confession or admission obtained in violation ofthe right to counsel has been received; and the rule of the Dorado case shouldbe prospective in operation.84 Amid curiae briefs have also been filed by numerous attorneys on behalf andin support of the position of defendant and appellant. The positions taken by thebriefs generally are that the court has correctly interpreted and applied Escobedov. Illinois; that the rule of law stated by the court is not impractical and will notunduly hamper law enforcement officers; that the respondent is in gross error instating there is no right to silence; that the respondent is acting as a "Prophet ofDoom;" that the interrogation of a suspect upon whom the accusatory process hasbeen focused is part of a criminal prosecution within the Sixth Amendment; thatthe courts uniformly apply retroactively decisions upholding constitutional rights;and that the "Doctrine of Escobedo may not constitutionally be limited to prospec-tive application only." Brief for Robert H. Lund, E. Fred Lightner, William T.Pillsbury, and David D. Battin of Long Beach, California, and Jim F. Kingham, Esq.of London, England, as Amici Curiae People v. Dorado, 61 A.C. 892, 394 P.2d952, 40 Cal. Rptr. 264 (1964), and Brief for National Lawyers Guild, San FranciscoChapter Amicus Curiae People v. Dorado, 61 A.C. 892, 394 P.2d 952, 40 Cal. Rptr.264 (1964).

The Right to Counsel in California

Santa Clara Law ReviewVolume 5 | Number 1 Article 131-1-1964Recent DecisionsSanta Clara Law ReviewFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Case Note is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationSanta Clara Law Review, Case Note, Recent Decisions, 5 Santa Clara Lawyer 103 (1964).Available at: http://digitalcommons.law.scu.edu/lawreview/vol5/iss1/13TORTS: LIABILITY OF BANK FORNEGLIGENT DISHONOR OF DEPOSITOR'SCHECK: WEAVER v. BANK OFAMERICA (CAL. 1964)The relationship between a bank and its depositor-customer istraditionally based on contract.The essence of the bank's obligation under such debtor and creditorcontract is that in consideration of the deposit by the customeror depositor, the bank will whenever by the presentation of a genuinecheck in the hands of a person entitled to receive the amount of suchcheck, a demand for payment is made, honor such check if sufficientfunds to cover the amount thereof are on deposit.'The contractual nature of the relationship imposes this obligation onthe bank to honor checks of its customers.2 When a bank, throughmistake or negligence, fails to honor a merchant's check, the obliga-tion is patently breached.8 Before the bank's obligation to honorchecks was statutorily defined, California, like most jurisdictions,adhered to this traditional view in allowing recovery of damagesfor a bank's dishonor. When the dishonored depositor was a traderor merchant, a presumption was raised that substantial damages hadbeen sustained.4 The distinction between merchant and non-mer-chant was eclipsed by Civil Code Section 3320,1 and proof of actualdamage is now required in every case.The recent decision of Weaver v. Bank of America' is the latestextension of this doctrine. In this case Weaver had a standard check-ing account in the Bank of America. He drew a check on his account,payable to a merchant. After the merchant negotiated the check itwas returned to him bearing the stamp "Account Closed." Actually,Weaver had more than sufficient funds to cover the amount. It wasconceded that through some negligence the bank had marked thecheck in this manner. Without seeking any confirmation from the1 Allen v. Bank of America Nat. Trust & Say. Ass'n., 58 Cal. App. 2d 124,127, 136 P.2d 345, 347 (1943); accord. Glassel Dev. Co. v. Citizens' Nat. Bank, 191Cal. 375, 216 Pac. 1012 (1923); Reeves v. First Nat. Bank, 20 Cal. App. 508, 129Pac. 800 (1912), see cases collected in Annot., 126 A.L.R. 206 (1940).2 See 10 Am. JuR. 2d Banks § 567 (1963).8 Bearden v. Bank of Italy, 57 Cal. App. 377, 207 Pac. 207 (1922); Simminoff v.Jas. H. Goodman & Co. Bank, 18 Cal. App. 5, 121 Pac. 939 (1920); Hartford v. AllNight & Day Bank, 170 Cal. 538, 150 Pac. 356 (1915).4 See cases in Annot., 4 A.L.R. 948 (1919).r CAL. Civ. CODE § 3320. This section of the Civil Code was replaced by section4402 of the Commercial Code on January 1, 1965.6 59 Cal. 2d 428, 380 P.2d 644, 30 Cal. Rptr. 4 (1963).SANTA CLARA LAWYERbank, the merchant swore out a warrant resulting in Weaver's arreston a charge of petty theft. Weaver sought damages in both tort andcontract from the bank. At the trial level, the bank's demurrer wassustained. On appeal, the California Supreme Court held unani-mously that Weaver could recover: the claim stated a cause ofaction sounding in both tort and contract.In California, the issue of a bank's tort liability has had acheckered history of dissatisfying results.7 The Weaver case is onedecision on the logical side of this controversy. The plaintiff allegedthat although the payee was the immediate cause of her confinementand detention, the Bank of America was the proximate cause of herinjury. By defendant's dishonor of her check, she was placed in aposition of vulnerability to such prosecution. Plaintiff's argumentwas that such arrests are not infrequent under like circumstancesand are entirely foreseeable.In ruling favorably on plaintiff's contentions, the court adheredto the more reasonable theory that foreseeability is the rightful testin the chain of causation. Speaking for the court, Justice Tobrinerstated:Not only do these cases [in other jurisdictions] sustain the conclu-sion that the negligence of the bank operated as the proximate causeof the damage, but that conclusion finds support in the doctrine of re-cent cases that the intervening acts of a third party will not terminatethe defendant's liability for negligence if that act were reasonably fore-seeable.8In so holding, the court overruled two prior California decisions.The rule had substantially been set forth in the leading case ofHartford v. All Night and Day Bank.9 This case presented a ques-tion of dishonor of a check where the plaintiff maintained a savingsaccount. Here the court held that arrest broke the chain of causationas a matter of law.It did not necessarily follow that plaintiff would be arrested andcharged with a felony because of the bank's acts. There was no causalconnection between the two things. There was an interruption and theintervention of an entirely separate cause, which cause was an inde-pendent human agency acting with an independent mind.' 0The other decision upon which defendant relied was the later7 Abramonowitz v. Bank of America Nat. Trust & Say. Ass'n., 131 Cal. App. 2d892, 281 P.2d 380 (1955), and note 1 supra.s Weaver v. Bank of America Nat. Trust & Say. Ass'n, 59 Cal. 2d 428, 433, 380P.2d 644, 648, 30 Cal. Rptr. 4.9 170 Cal. 538, 150 Pac. 356 (1915).I' Id. at 539, 150 Pac. at 357.[Vol. 5RECENT DECISIONScase of Bearden v. Bank of Italy." In this case the court refused todistinguish Hartford, although Bearden involved a checking account.It denied recovery on the basis of proximate cause. Both these casesheld as a matter of law that arrest and prosecution could not be theproximate result of defendant bank's negligence. Decisions in otherjurisdictions challenged the rule in these cases,12 and they receivedsubstantial criticism by certain text writers.' 8In Weaver, plaintiff's claim hinged upon the applicability ofSection 3320 of the Civil Code. This statute, enacted in 1917, pro-vides:No bank shall be liable to a depositor because of the non-paymentthrough mistake or error and without malice of a check which shouldhave been paid unless the depositor shall allege and prove actualdamages by reason of such non-payment and in such event the liabilityshall not exceed the amount of damage so proven.14The enactment of this section was urged by the American Banker'sAssociation. The Association wanted the protection afforded by the"actual damages" provision. Now, with the adoption of the Commer-cial Code, Section 3320 of the Civil Code will be replaced by Sec-tion 4402 of the Commercial Code.' 5 Thus, the very statute urgedby the bankers for their protection is now being repealed by onedirected toward protection of the depositor. In adopting the bulkof the Uniform Commercial Code, the Legislature chose to omit thelast two sentences of the official text. These provide:If so, proximately caused and proved damages may include damages foran arrest or prosecution of the customer or other consequential dam-ages. Whether any consequential damages are proximately caused bythe wrongful dishonor is a question of fact to be determined in eachcase.16In effect, the Weaver case presented an opportunity for thecourt to inferentially acknowledge these deleted sentences of Section4402. The court did this in what appears to be an expeditious meansof correcting legislative omission. It was the opinion of the Cali-fornia State Bar Committee on the Commercial Code that one11 57 Cal. App. 377, 207 Pac. 270 (1922).12 Collins v. City Nat. Bank & Trust Co., 131 Conn. 167, 38 A.2d 582 (1944);Mouse v. Central Say. & Trust Co., 12 Ohio St. 599, 167 N.E. 868 (1929); Woody v.First Nat. Bank 194 N.C. 549, 140 S.E. 150 (1927) ; First Nat. Bank v. Stewart, 204Ala. 199, 85 So. 529 (1920) ; see cases in Annot., 153 A.L.R. 1035 (1944).1 PROSSER, Proximate Cause in California, 38 CALIF. L. REv. 369 (1950);I WITwNi, SUMMARY OF CALIFORNIA LAW, Negotiable Instruments, § 71 (7th ed.1960) ; 7 HASTINGS L.J. 322 (1956) ; see also, RESTATEMENT, TORTS, § 447-449 (1934).14 CAL. CiV. CODE § 3320.15 CAL. COMMi. CODE § 4402 (West's 1964).16 UNIv. COM. CODE § 4-402.19641SANTA CLARA LAWYERparticular item of damage, namely, arrest and prosecution resultingfrom dishonor, should not be singled out for special treatment.17The Committee's reluctance to adopt these sentences does notappear to be consistent with current case law."It should further be noted that plaintiff in the Weaver casebased her claim on both tort and contract. The court inferred thatdamages could be recovered under either theory.'9 However, itmight have been difficult to argue that arrest and confinement weredamages "within reasonable contemplation of the parties."20 Bethat as it may, the court concluded that plaintiff had justifiablyalleged a breach of duty and consequential damages which raisedissues of fact that could only be resolved by the jury.With the advent of collection agencies and highly efficient creditdepartments, retailers have surely been aware of the abundance ofbad checks. It seems axiomatic that banking institutions are asaware, if not more so. Since the writing of such checks is expresslyforbidden by the Penal Code, 2' the resulting arrest and prosecutionof a depositor can scarcely be said to be a remote possibility.When a bank bounces a check of a customer even though he hassufficient funds, and the payee has the arm of the law put on him, tosay that the bank's action had nothing to do with his incarcerationis fantastic. It is recommended that California seize the opportunityafforded by the code to abrogate this unrealistic rule.22Thus, tort liability as found in Weaver appears consistentlysound with both the weight of American jurisdictions and the com-mercial practices of the times. Even with increased usage of bankinginstitutions, the essence of the depositor-bank relationship is apersonal one. When a depositor opens an account, the bank incursa strict duty to safely handle the depositor's funds. Of course, proofof actual damages is vital to the cause of action. But, as in Weaver,it should not be doubted that arrest of the innocent through bankingnegligence is an actual and substantial injury. It is an obvious conse-quence of the bank's clerical errors.David S. Maguire17 37 J. OF ST. BAR OF CALIF. 169 (1962).18 Cf. authorities cited note 12, supra.19 Weaver v. Bank of America Nat. Trust & Say. Ass'n, 59 Cal. 2d 428, 380P.2d 644, 30 Cal. Rptr. 4 (1963).20 Id. at 434, 380 P.2d at 649.21 CAL. PEN. CODE § 47(6a).22 Sixth Progress Report to the Legislature by Senate Fact Finding Committeeon Judiciary, pt. 1, The Uniform Commercial Code, at 481-482 (1961).

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