902 F2d 39 Holcomb v. People of California

902 F.2d 39

Unpublished Disposition

Wendell L. HOLCOMB, Petitioner-Appellant,
PEOPLE OF CALIFORNIA, Respondent-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 87-6013.


United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1989.
Decided May 11, 1990.


Before FLETCHER and NELSON, Circuit Judges, and EARL H. CARROLL* District Judge.




Wendell L. Holcomb (Petitioner or Holcomb) appeals from the district court's denial of his Petition for Writ of Habeas Corpus. In August, 1985 a jury found Holcomb guilty of violating Cal.Veh.Code Sec. 12500(a) (driving a motor vehicle without a valid driver's license, a misdemeanor) and he was sentenced to 30 days incarceration, and a $300.00 fine.


After exhausting his state court remedies, Holcomb filed a petition, pro se, for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. In his federal petition, Holcomb challenged his conviction of driving a motor vehicle without a valid driver's license on the grounds that (1) he was denied assistance of counsel of his choice; (2) he was unlawfully arrested without a warrant; (3) he was denied equal protection by the states court's failure to provide a court reporter and a transcript; (4) he was denied his constitutional rights being tried without a verified complaint on file; (5) the jury instructions unconstitutionally shifted the burden of proof of an essential element of the offense to Holcomb.


The magistrate issued his report and recommendation that the petition be denied. Holcomb filed objections to the report. These objections discuss each of his contentions. It is clear that Holcomb's position with respect to the driver's license is that the state cannot require him to be licensed. The Magistrate's final Report and Recommendations is instructive regarding Holcomb's claim:

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Petitioner persists in his conviction that he is constitutionally entitled to drive a motor vehicle upon California roads without possessing a valid California driver's license. He is not. He has obdurately refused to comply with the state's valid licensing requirements, despite the patient explanations of a number of judicial officers that he must either do so or else refrain operating cars upon the public highways. He must now pay the penalty for his intransigence.


The district court adopted the report and recommendation and entered an order denying habeas relief. Holcomb timely appealed the district court decision and this court issued a certification of probable cause.

Standard of Review


"We review de novo the decision to grant or deny a petition for writ of habeas corpus." Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986).



The facts of the proceedings, as set forth in the Settled Statement On Appeal, are that on January 31, 1985, Wendell L. Holcomb was driving on the I-5 Freeway in the City of Anaheim and was observed by Officer James Hawking making a number of lane changes without signaling. As a result the Officer stopped Holcomb and requested that he produce his drivers license. Holcomb stated he did not have a drivers license; while Officer Hawking was writing a citation Holcomb produced a photocopy of a California drivers license which had expired in 1981. (ER 201)


Holcomb did not testify at trial but he entered a copy of a notarized affidavit into evidence, (Exhibit A) which he previously filed with the Director of Licenses, California Department of Motor Vehicles. In the affidavit which is dated September 11, 1984, he objected to the state's right to require a driver's license and stated that he was thereby terminating his "driver's license contract" and further that he would "no longer accept the State's privilege to drive".



The petitioner raises five claims for relief in his habeas petition; however he only addressed the jury instruction issue in his appellate brief. Petitioner asserts that his opening brief "concentrates on [the jury instructions issue] because the Certificate of Probable Cause emphasized this aspect". This Court had no duty to advise Petitioner whether the other issues raised in the habeas petition should be "expanded" in the brief.


The four other claims do not give rise to a federal constitutional violation which would justify habeas corpus relief. Each of these issues will be discussed in turn.


The Orange County Municipal Court's refusal to allow Holcomb to be represented by a person who was not licensed to practice law did not violate his Sixth Amendment right to counsel. An advocate who is not a member of the bar may not represent a client, other than himself in court. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988), rehearing denied 108 S.Ct. 2918, 101 L.Ed.2d 949 (1988). See also Farretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), (a criminal defendant's Sixth Amendment right to represent himself if he voluntarily elects to do so, does not encompass the right to choose any advocate if the defendant wishes to be represented by counsel).


The petitioner also challenges the constitutionality of the initial stop of his vehicle on the grounds that it was an arrest without a warrant. Holcomb was not arrested, he was pulled over by Officer Hawking. Regardless of how routine traffic violations are, they constitute criminal conduct and, even standing alone, provide founded suspicion for a brief investigatory stop. United States v. Fouche, 776 F.2d 1398 (9th Cir 1985) (remanded on other grounds). Therefore, petitioner's lane changes without signaling justified the investigatory stop.


The third claim of petitioner which does not rise to constitutional proportions is the assertion that the state court's failure to provide a court reporter denied him equal protection. The petitioner was given the opportunity to have a court reporter if he chose to pay the costs, or by filling out a financial affidavit showing that he was indigent. Holcomb refused to pay the cost or file a financial statement. He was not deprived of any right constitutionally guaranteed right in this instance.


The fourth of petitioner's claims which is not constitutionally cognizable is the claim that he was never issued a verified complaint. The petitioner signed the ticket issued by Officer Hawking, albeit under protest and in lieu of going to jail, and thereby effectively waived any requirement that there be a verified complaint.


The only claim raised by petitioner that gives rise to a constitutional question is his contention that the trial court's jury instruction to the effect that Holcomb had the burden of proving that he had a license, unconstitutionally shifted the burden of proof of an essential element of the offense to Holcomb. Petitioner principally relies on Sandstrom v. Montana, 442 U.S. 510, 512 (1979).


The Supreme Court in Sandstrom "held that a presumption which relieves the state from its burden of proving every fact necessary to constitute the crime charged, or which shifts the burden of persuasion to the defendant, violates due process". Huffman v. Ricketts, 750 F.2d 798, 804 (9th Cir.1984). (discussing Sandstrom ). The purpose of that rule is to ensure that only the guilty are criminally punished. Rose v. Clark, 478 U.S. 570, 580 (1986).


However, the reasoning in, and the rationale behind Sandstrom does not support the petitioner's position with regard to the instruction at issue before this Court:


When the verdict of guilty reached in a case in which Sandstrom error was committed is correct beyond a reasonable doubt, reversal of the conviction does nothing to promote the interest that the rule serves.


Rose 478 U.S. at 580 (1986). Therefore if a jury instruction is given which unconstitutionally shifts the burden of proof reversal is inappropriate if the error is harmless. Id. at 576-579.


The test for harmless error is whether the error complained of "might have contributed to the conviction" or whether the instruction complained of "possibly influenced the jury adversely to the litigant. Ruff v. Kincheloe, 843 F.2d 1240, 1241 (9th Cir.1988).


Assuming arguendo that the trial court did commit error in its instruction to the jury, reversal is inappropriate because no reasonable jury could have found Holcomb innocent of the charges against him.


Holcomb was prosecuted for driving without a valid driver's license. The petitioner did not contest that he did not have a driver's license but rather he contended that the state of California could not require him to possess a driver's license.


The facts set forth in this case, i.e. Officer Hawking's testimony that Holcomb told him he did not have a license and gave the Officer a copy of his driver's license which expired in 1981 (ER 201); and Holcomb's September, 1984 affidavit which he offered in evidence at the trial wherein he stated that he terminated his "driver's license contract", establish beyond a reasonable doubt that the defendant was driving without a license as required by Cal.Veh.Code Sec. 12500(a).


Reviewing the record before the Court (Excerpt of Record and the District Court's complete docket), it is apparent that any error that might have occurred by the giving of the challenged jury instruction was harmless because the error would not have contributed to the conviction or influenced the jury adversely to Holcomb. In view of this determination, the Court need not address the Peoples' contention that the questioned instruction is constitutionally sound under the "rule of convenience". People v Yoshimura, 91 Cal.App.3d 609, 627; 154 Cal.Rptr. 314, 324 (1979); Morrison v California, 291 U.S. 82, 89 (1934). See also: Woods v Butler, 847 F.2d 1163 (5th Cir.1988).



Honorable Earl H. Carroll United States District Judge for the District of Arizona, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Cir.R. 36-3