Laudermilk v. California Department of Corrections

• Citation: 439 F.2d 1278
• Decision Date: 16 March 1971
• Docket Number: No. 25173.,25173.
• Parties: Albert Russell LAUDERMILK, Petitioner-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS and W. T. Stone, Superintendent, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

439 F.2d 1278 (1971)

Albert Russell LAUDERMILK, Petitioner-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS and W. T. Stone, Superintendent, Respondents-Appellees.

No. 25173.

United States Court of Appeals, Ninth Circuit.

March 16, 1971.

Albert Russell Laudermilk, in pro. per.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen, Deputy Atty. Gen., San Diego, Cal., for appellees.

Before DUNIWAY, ELY and WRIGHT, Circuit Judges.

PER CURIAM:

This appeal is the latest in a long series of attempts by petitioner Laudermilk to secure his release from the custody of the California authorities where he is now serving a life sentence following his plea of guilty to a charge of murder in the first degree. The district court has denied his petition for writ of habeas corpus and we affirm.

A detailed recitation of the factual background here is unnecessary. Because of our disposition, it is sufficient to note that Laudermilk's sole contention here is that his plea of guilty is invalid under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), since there was no pretrial hearing as to his competency to stand trial or enter a plea of guilty.

This question has been given substantial consideration by other courts before reaching this court. Laudermilk's appeal was first heard by a California District Court of Appeal which, by a 3-1 vote, affirmed his conviction in January, 1967, in an unreported decision.

This case was then affirmed by the Supreme Court of California, sitting en banc, with Justice Peters dissenting. People v. Laudermilk, 67 Cal.2d 272, 61 Cal.Rptr. 644, 431 P.2d 228 (1967). The United States Supreme Court denied certiorari. Laudermilk v. California, 393 U.S. 861, 89 S.Ct. 139, 21 L.Ed.2d 128 (1968).

This action followed when Laudermilk filed his petition for habeas corpus in the district court. After a detailed review of the state court record, the district court denied the petition. Neither the petition nor his brief on appeal suggests that there is any further evidence which might lead to a conclusion other than that reached by the state trial court six years ago.

Like the four other courts before us, we have carefully reviewed the record from the state trial court and conclude that the district court's denial of habeas corpus should be affirmed for the reasons set forth in the opinion of the Supreme Court of California. People v. Laudermilk, supra.

There is nothing in our decision of Rhay v. White, 385 F.2d 883 (9th Cir. 1967) which dictates a contrary result. See also Schoeller v. Dunbar, 423 F.2d 1183 (9th Cir. 1970.)

Affirmed.

ELY, Circuit Judge (dissenting):

I respectfully dissent. The state court judge accepted Laudermilk's plea of guilty to a charge of first degree murder knowing that Laudermilk had recently been confined in different hospitals for the mentally ill and having been advised that Laudermilk was then uncooperative with his own attorney. One of the medical reports before the judge, that of a Dr. Hoffman, recited the doctor's opinion to the effect that Laudermilk was afflicted with a severely paranoid personality and should be given psychiatric treatment. Despite all this information, the trial judge accepted Laudermilk's plea and ordered him confined to prison for life without conducting a sanity hearing to determine whether Laudermilk was mentally competent to enter the plea.

I cannot reconcile the result reached by my Brothers with Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966), and my views thoroughly coincide with those of Mr. Justice Peters of the California Supreme Court, set forth in his dissenting opinion in People v. Laudermilk, 67 Cal.2d 272, 288-296, 61 Cal.Rptr. 644, 655-660, 431 P.2d 228, 239-244, (1967), cert. denied, sub. nom. Laudermilk v. California, 393 U.S. 861, 89 S.Ct. 139 (1968). At the point when the trial judge accepted Laudermilk's plea, the situation was such as to require that a hearing be conducted. The judge could not, I submit, undertake to resolve the competency question, then readily apparent, by simply weighing conflicting written reports.

I adopt Mr. Justice Peters' opinion as my own, and I think it so perceptive and so carefully documented as to merit republication in the Federal Reporter. It reads:

PETERS, Associate Justice.

I dissent.

The sole point of any importance involved on this appeal is whether there was presented to the trial court any substantial evidence of the insanity of appellant so as to entitle him to the hearing required by section 1368 of the Penal Code.¹ If such evidence was produced, no matter how strong the conflicting evidence may have been and no matter how weak was the evidence on behalf of appellant, provided only it was substantial, the trial judge was required to order a present sanity hearing as a matter of law.

This was not always the California law. For many years the California courts had held that the trial court on a motion under section 1368, and on conflicting evidence, had discretion to determine whether it had a "doubt" of sanity, and if not to deny the motion. (See People v. Merkouris, 52 Cal.2d 672, 344 P.2d 1, cert. den. 361 U.S. 943, 80 S.Ct. 411, 4 L.Ed.2d 364; People v. Lindsey, 56 Cal.2d 324, 14 Cal.Rptr. 678, 363 P.2d 910.) Under the compulsion of Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815, this court in People v. Pennington, 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942, revised the rule of the Merkouris and Lindsey cases, supra, and disapproved portions of those opinions. The majority, in the instant case, holds that there was no substantial evidence of insanity within the meaning of section 1368, and that a sanity hearing was properly denied. In so holding the majority, while purporting to recognize the fundamental changes in the law accomplished by the Robinson and Pennington cases, supra, give only lip service to those changes and in fact apply the now repudiated rules of Merkouris and Lindsey, supra. To say the least, the majority gravely, and in my opinion erroneously, limit the rule of the Robinson and Pennington cases, supra.

The proper rule, and the one adopted in the Pennington case, supra, is stated as follows (66 Cal.2d at p. 518, 58 Cal. Rptr. at p. 381, 426 P.2d at p. 949):

"Pate v. Robinson stands for the proposition that an accused has a constitutional right to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense. Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence — testimony of prosecution witnesses or the court's own observations of the accused — may be to the contrary.

"When the evidence casting doubt on an accused's present sanity is less than substantial, People v. Merkouris, supra, 52 Cal.2d 672, 678-679, 344 P.2d 1, correctly states the rules for application of section 1368 of the Penal Code. Whether to order a present sanity hearing is for the discretion of the trial judge, and only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge's determination be disturbed on appeal. But, when defendant has come forward with substantial evidence of present mental incompetence, he is entitled to a section 1368 hearing, as a matter of right under Pate v. Robinson, supra, 383 U.S. 375, 86 S.Ct. 836 15 L.Ed.2d 815. The judge then has no discretion to exercise. Insofar as People v. Merkouris, supra, 52 Cal.2d 672, 344 P.2d 1, and People v. Lindsey, supra, 56 Cal.2d 324, 14 Cal.Rptr. 678, 363 P.2d 910, suggests that the judge, because he personally has no doubt as to the accused's sanity, may deny a section 1368 hearing despite substantial evidence of present insanity, they are overruled."

In the Pennington case, supra, the evidence of insanity within the meaning of section 1368 was substantial, and the majority so admit. The evidence in Pate v. Robinson, supra, was not nearly so substantial, and yet the Supreme Court of the United States reversed a determination of the Illinois court that it had no doubt of sanity, and held that a hearing was required as a matter of law. We, of course, are bound by that opinion.

In Pennington,supra, this court summarized the evidence produced in Pate v. Robinson, supra, and commented on the applicable law, as follows (66 Cal.2d at p. 517, 58 Cal.Rptr. at p. 380, 426 P.2d at p. 948): "That evidence consisted of testimony by three of Robinson's close relatives and one family friend relating various acts of Robinson several years before the trial which suggested mental illness.7 Two of the witnesses, Robinson's

"7 Robinson had been struck in the head by a brick at age seven and thereafter, according to his mother, `"acted a little peculiar."' He once kicked a hole in the family bar for no apparent reason. He was sullen and frequently complained of headaches. He had been in many fights and had murdered his own infant son. He became `noticeably erratic' when in the Army. His mother observed him on occasions with a `"glare in his eyes"' and once found him pacing the floor saying something was after him. She had also observed him `"a little foamy at the mouth."' The family friend said that when she spoke to Robinson he either stared at the floor or looked at her `glassy-eyed.' Robinson's grandfather testified that Robinson was `not right' — often walked abruptly away from his work and often appeared in a daze. Robinson once quarreled with his wife, and threatened to burn her clothes. He became so unruly he tried to knock down a door, and police were called. The aunt testified that Robinson acted strangely and that she had seen him `"stary-eyed" * * *, prancing, nervous, and "just staring wild."' Robinson also once feared someone was going to kill him.

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