Downs, In re

• Decision Date: 21 December 1970
• Docket Number: Cr. 12813
• Court: California Supreme Court
• Parties: , 478 P.2d 44 In re Woodrow J. DOWNS on Habeas Corpus. . In Bank

Page 612

91 Cal.Rptr. 612

3 Cal.3d 694, 478 P.2d 44

In re Woodrow J. DOWNS on Habeas Corpus.

Cr. 12813.

Supreme Court of California In Bank.

Dec. 21, 1970.

Rehearing Denied Jan. 20, 1971.

Woodrow J. Downs, in pro. per.

Ronald E. Mallen, Los Angeles, under appointment by the Supreme Court, and Long & Levit, Los Angeles, for petitioner.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

On February 20, 1968, petitioner was convicted, upon his plea of guilty, of assault by means of force likely to produce great bodily injury (Pen.Code, § 245 subd. (a)). On March 27, 1968, he moved to withdraw hi guilty plea; the trial court denied this motion, denied probation and sentenced petitioner to state prison. We issued an order to show cause upon petitioner's allegations (1) that he was denied the effective assistance of counsel in that his attorney failed to investigate, and thereby withdrew, a crucial defense arising from petitioner's epilepsy and (2) that petitioner's guilty plea was involuntary because he was under the influence of heavy doses of medication provided by the medical staff of the jail at the time the plea was entered. We appointed the Honorable Richard F. Harris, Judge of the Superior Court of San Luis Obispo County, to act as referee.

After an evidentiary hearing, Judge Harris concluded that neither of petitioner's contentions was valid. He first found that petitioner's counsel was aware of petitioner's medical history of epilepsy, had made some inquiries of medical personnel, and was prepared to introduce medical evidence in support of the defense if the case went to trial. The referee also found that counsel recognized the legal significance of a showing that petitioner was in the throes of an epileptic seizure at the time of the assault, i.e., that such proof would constitute a complete defense to the charged assault. Judge Harris concluded, however, that petitioner's attorney had substantial doubts as to whether the necessary factual showing could be made--doubts which found firm support in the record--and that, under the circumstances, the attorney's advice to plead guilty to a lesser charge with the possibility or probation did not constitute ineffective assistance of counsel.

Secondly, the referee found that the medication that petitioner had taken prior to his guilty plea did not render him unduly susceptible to suggestion or coercion and that the guilty plea was entered voluntarily and with full knowledge of its consequences. 'A referee's findings of fact are, of course, not binding on this court, and we may reach a different conclusion on an independent examination of the evidence produced at the hearing he conducts even where the evidence is conflicting. (Citation.) However, where the findings are supported by 'ample, credible evidence' (citation) or 'substantial evidence' (citation) they are entitled to great weight (citations) * * *' (In re Branch (1968) 70 Cal.2d 200, 203, 74 Cal.Rptr. 238, 240, 449 P.2d 174, 176; In re Cowans (1970) 2 Cal.3d 733, 738, 87 Cal.Rptr. 499, 470 P.2d 635.) As we discuss below, the instant record fully supports the referee's findings and we have therefore concluded that the requested writ of habeas corpus should be denied.

The assault to which petitioner pleaded guilty occurred in November 1967 in 'Bradley's,' characterized by various witnesses as a 'rough bar.' Petitioner had apparently been released from the county jail shortly before the incident, and, on the day of the assault, was in the midst of a rather prolonged drinking 'bout.' Although petitioner testified that he could not recall any of the events surrounding the crime--ostensibly a consequence of his epileptic 'twilight state'--other witnesses gave the following account of the events leading to the assault.

After the bartender-owner of Bradley's had refused to serve petitioner any more drinks, another patron offered to buy him one. When the bartender would not permit petitioner a further drink, an argument ensued, resulting, finally, in the bar's 'bouncer' removing petitioner from the bar. A short time later petitioner returned to the bar, became involved in another disturbance and the bouncer came over and grabbed petitioner. A general struggle erupted, in the process of which the bouncer was stabbed 11 times in the back.

As the victim fell to the floor, petitioner fled the bar and ran down the street; he was stopped a short distance away by a Navy short patrolman who detained him until the police arrived. When the police appeared petitioner had a knife in his hand; there was, however, no blood on either the knife or petitioner's person. A short time thereafter, petitioner suffered an epileptic seizure and was taken by the police to a hospital. Several days later he was transferred to the city jail, where he was initially charged, in separate counts, with (1) 'assault with a deadly weapon with intent to commit murder' (Pen.Code, § 217), and (2) 'assault by means of force likely to produce great bodily injury.' (Pen.Code, § 245 subd. (a).)

After arraignment, Carl Fabbroni was appointed to represent the petitioner. Petitioner testified at the referee's hearing that during his first meeting with his counsel he disclosed his epileptic condition, told Fabbroni that he sometimes went into a 'twilight state' during which time he had no control over his actions, and suggested that these ailments might constitute a defense to the crimes of which he was accused. Although Fabbroni stated at that time that he 'would look into the matter,' petitioner contends that his counsel never followed up this lead; Fabbroni's subsequent advice to plead guilty, it is claimed, was a direct product of the counsel's ineffective investigation, and amounted to constitutionally ineffective assistance of counsel.

In discussing the standards against which a claim of 'ineffective assistance of counsel' is to be judged, in In re Saunders (1970) 2 Cal.3d 1033, 1041--1042, 88 Cal.Rptr. 633, 472 P.2d 921, we noted that one fundamental standard 'is that which places upon counsel the duty to conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he may make informed decisions on his client's behalf both at the pleading stage (citations) and at trial (citations). If counsel's 'failure (to undertake such careful inquiries and investigations) results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled. (citations)" Petitioner's first contention is essentially that his counsel failed to meet this criterion.

The record, however, does not support this allegation. Mose significantly, petitioner failed to make any showing that his counsel had neglected to contact physicians who had treated him in the past or had failed to uncover relevant medical records. Because, in this petition for habeas corpus, petitioner bears the burden of establishing the inadequacy of his counsel's efforts (cf. In re Smith (1970) 2 Cal.3d 508, 510, 86 Cal.Rptr. 4, 467 P.2d 836), this omission is, of course, a crucial one. (Cf. In re Saunders (1970) 2 Cal.3d 1033, 1048, 88 Cal.Rptr. 633, 472 P.2d 921.)

Moreover, although Fabbroni died prior to the referee's hearing and thus could not personally relate exactly what steps he had taken in connection with petitioner's medical defense, and counsel's notes which were preserved did not contain this information, evidence was presented at the referee's hearing which demonstrates that, contrary to petitioner's allegation, the attorney had pursued this issue. First, the record establishes that Fabbroni had subpoenaed Mr. Tudor, an executive of the Epilepsy Society, and petitioner's medical records, for use on the day of the trial. Although these subpoenas were issued only one day prior to the trial, admittedly quite late, their issuance at least establishes that counsel was aware of, and was acting to present, the epilepsy defense. Second, the district attorney who prosecuted petitioner testified that on the date set for trial, petitioner's counsel brought to court several medical texts dealing with epilepsy; a reasonable inference is that counsel planned to use these in advancing petitioner's medical claims. Third, petitioner's own account of his discussion with counsel on the date of the guilty plea demonstrates that the attorney was not unaware of the possibilities of the epilepsy defense. ¹ Petitioner did not testify that Fabbroni had forgotten his medical...