548 F.2d 271 (9th Cir. 1977), 75-2087, Sailer v. Gunn

• Citation: 548 F.2d 271
• Party Name: Kenneth SAILER, Petitioner-Appellee, v. J. B. GUNN, Respondent-Appellant.
• Case Date: January 06, 1977
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

Page 271

548 F.2d 271 (9th Cir. 1977)

Kenneth SAILER, Petitioner-Appellee,

v.

J. B. GUNN, Respondent-Appellant.

No. 75-2087.

United States Court of Appeals, Ninth Circuit

January 6, 1977

Page 272

[Copyrighted Material Omitted]

Page 273

Shuni Asari, Deputy Atty. Gen. of California, Los Angeles, Cal., for respondent-appellant.

John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal. for petitioner-appellee.

Before MERRILL, CHOY and GOODWIN, Circuit Judges.

MERRILL, Circuit Judge:

Submission was deferred in this case pending our decision in de Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc). The district court granted Kenneth Sailer's petition for a writ of habeas corpus on the grounds that the state court improperly failed: (1) to hold a competency hearing; (2) to hold a hearing on the voluntariness of a guilty plea or allow it to be withdrawn; and (3) to revoke Sailer's probation in a manner consistent with due process. Relying largely on authority handed down since the judgment of the district court was rendered, we find that none of these three grounds warrants the granting of relief, and, accordingly we reverse.

FACTS

The facts are set out in full by the district court at 387 F.Supp. 1367 (C.D.Cal.1974). Sailer was charged on August 24, 1965, by the State of California with assault with a deadly weapon with intent to murder his estranged wife. On October 4, 1965, he pleaded guilty to assault with a deadly weapon. Sentencing was set for October 29, 1965, but it was continued at defense counsel's request to have an evaluation of Sailer at a state diagnostic facility under Cal.Penal Code § 1203.03 (West Supp.1976). The court convened on March 18, 1966, to fix sentence. At that time the court had before it a probation report dated October 21, 1965, and numerous § 1203.03 reports. The court suspended proceedings without imposing sentence and placed Sailer on supervised probation for five years under certain conditions, one of which was that he be confined in a county jail for one year.

Sailer was next in court on September 13, 1966, on the basis of his probation officer's report (dated July 22, 1966), that Sailer had escaped from an honor farm on June 2, 1966, and voluntarily turned himself in on July 11, 1966. The report indicated that Sailer admitted the escape.

Sailer was represented by counsel at the hearing, and apparently the escape was confirmed by his counsel. Sailer addressed the court himself. He admitted his escape, but said it was done to get enough money to fight for a new trial. Defense counsel asserted that at the March 18 hearing Sailer was about to ask the court to withdraw his guilty plea, but for some reason he did not do so. The record, however, was barren of any indication that Sailer had ever desired to withdraw his plea or not to plead guilty. The court rejected Sailer's request to withdraw his plea; probation was revoked and sentence pronounced. Sailer has now been released from custody after serving his full term. ¹

1. Sailer's Competence

   The first ground on which the district court granted Sailer's petition was that under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the state court should have held a hearing to determine whether Sailer was competent to participate in the criminal proceedings being conducted against him. Pate holds that when there is a bona fide doubt as to a defendant's competence to stand trial the trial judge must, on his own motion, conduct a hearing to determine the defendant's ability to understand the nature of the proceedings

   Page 274

   against him and to assist his trial counsel in his defense.

   Pate, de Kaplany v. Enomoto, supra, and other cases ² dealing with the need for a hearing to consider the defendant's competence involved the question of competence to stand trial. Here, Sailer never had a trial. The question, then, is one of the need to have a hearing to test Sailer's competence to participate in nontrial proceedings. These included the guilty plea on October 4, 1965, the first sentencing hearing on March 18, 1966, and the final sentencing on September 13, 1966, when probation was revoked. The standard of competence for a guilty plea is discussed later.

   (a) Competence to Participate in Sentencing and Probation Revocation Proceedings

   Unlike a guilty plea, sentencing and probation revocation proceedings do not necessarily involve the relinquishment of constitutional rights. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When waiver of constitutional rights is not involved the competence in question entails mental ability and understanding of the same sort that the defendant is called upon to exercise in the course of standing trial. The Pate standard, appropriately adapted to fit the context of the proceedings, would thus seem to be the appropriate rule. ³

   In determining whether the defendant has the degree of competence necessary if he is to be subjected to or charged with the consequences of the particular proceedings, consideration should be given to the extent to which he can be expected to be called upon to participate in those proceedings and the nature of that participation. It follows that hearing is required if the judge entertains, or should reasonably have entertained, a good-faith doubt as to defendant's ability to understand the nature of the proceedings in which he is involved, or to participate intelligently in them to the extent that participation is called for.

   Applying this standard to the case before us we conclude, in the light of de Kaplany, that a reasonable judge would not have been compelled to have a good-faith doubt as to Sailer's competence. The items reflecting on Sailer's mental balance recited by the district court in its opinion related largely to Sailer's powers of self-control. 387 F.Supp. at 1369-70. They showed him to be impetuous; that he "acts impulsively with little consideration for the consequence of his actions." Id. at 1370. Many of them reflected upon his personality, such as "personality pattern disturbances" and "paranoid personality." Id. The only psychiatric report in the record stated:

   "Subject is well oriented and shows no intellectual deficit. His affect is generally appropriate. His stream of conversation is logical, coherent and relevant. He shows no evidence of delusions, hallucinations or other symptoms of falsification of reality. He is not particularly anxious or depressed and shows no other significant psychoneurotic phenomena. He appears to be a rather impulse-ridden character who acts out impulsively and has extreme difficulty in handling hostility appropriately."

   All reports were presented for the purpose of assisting the judge in deciding the appropriate sentence or disposition. In our judgment the record before the sentencing judge did not suggest that Sailer would have any difficulty in understanding the nature of sentencing or probation revocation proceedings, in comprehending what was at stake on those occasions, or in participating intelligently in the proceedings. ⁴

   Page 275

   Certainly the mere fact that psychiatric help was felt to be desirable as an aid to rehabilitation cannot be said to create a bona fide doubt of Sailer's...