People v. Brady, Cr. 1234

• Decision Date: 19 January 1973
• Docket Number: Cr. 1234
• Citation: 105 Cal.Rptr. 280,30 Cal.App.3d 81
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Lee BRADY, Defendant and Appellant.

Page 280

105 Cal.Rptr. 280

30 Cal.App.3d 81

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Lee BRADY, Defendant and Appellant.

Cr. 1234.

Court of Appeal, Fifth District, California.

Jan. 19, 1973.

[30 Cal.App.3d 83] Allen J. Ruby, San Jose under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Eddie T. Keller and G. Michael Gates, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

GARGANO, Justice.

In October 1971, petitioner moved the Superior Court of Stanislaus County to set aside three judgments of conviction entered in that court. His motion, entitled 'Motion to vacate and Set Aside Judgment and/or Petition for Writ of Error Coram Nobis,' was denied; the judgments petitioner was seeking to set aside had been affirmed on appeal, and the court below was without jurisdiction to act. (Pen.Code, § 1265.) Petitioner appealed, and we have treated the appeal as an original proceeding in this court for a writ of error coram vobis; the writ of coram vobis is essentially identical to the writ of coram nobis except the latter is addressed to the court in which the petitioner was convicted. (In re Lindley, 29 Cal.2d 709, 177 P.2d 918.)

The chronology is this:

In the year 1969 petitioner was arrested on a number of felony charges and lodged in the county jail. While awaiting preliminary hearing on the charges, petitioner escaped; he was captured a short time later.

On July 30, 1969, petitioner, by information was charged with one count of burglary, two counts of receiving stolen property, one count of possession of a concealable weapon, one count of assault upon a police officer, and one count of theft of a firearm from an officer. By separate information he was also charged with escape from the county jail and several other felonies allegedly committed during the escape. Petitioner pled not guilty and not guilty by reason of insanity to all counts. Then, the court ordered medical examinations of petitioner to determine his sanity as of the time of the offenses.

On August 31, 1969, petitioner escaped from the Stanislaus County Jail for the second time; he was apprehended one month later.

On October 24, 1969, petitioner was charged with the second escape, two counts of kidnapping, armed robbery, kidnapping for the purpose of robbery and burglary. Petitioner again entered pleas of not guilty and not guilty by reason of insanity to all counts. As in the preceding cases, two psychiatrists were appointed to examine petitioner and to report to the court on his sanity as of the time of the offenses.

Petitioner's jury trial on the charges arising out of the first escape, Case No. 104162, commenced on October 27, 1969; he was found guilty of the escape and of two counts of armed robbery; the jury found petitioner sane at the time the offenses were committed. He was sentenced to state prison on all counts, the sentences to run concurrently to each other.

Petitioner's trial on the felony charges for which he was initially arrested, Case No. 104188, commenced November 3, 1969; he was found guilty of two counts of receiving stolen property, one count of a felon in possession of a firearm, and one count of battery on a peace officer. Petitioner withdrew his plea of not guilty by reason of insanity, and he was sentenced to state prison on the battery and the firearm charges, the sentences to run concurrently. He was also sentenced to the county jail on the stolen property counts, and these sentences were ordered to run concurrently with the state prison sentences.

Petitioner was tried on the csecond escape and the related felonies, Case No. 105087, in December 1969; the jury found petitioner guilty of escape by force and violence, robbery and burglary; the jury also found petitioner sane at the time the offenses were committed. He was sentenced to state prison on the three counts, the sentences to run concurrently to each other, but consecutively to any other state prison term petitioner was serving.

Petitioner contends that we should order the Superior Court of Stanislaus County to vacate the judgments in all three cases because the trial judges failed to suspend the criminal trials until such time as petitioner's present sanity was determined, pursuant to Penal Code section 1368. He argues that in each case the medical evidence, as a matter of law, raised a doubt as to petitioner's ability to understand the nature of the proceeding and to assist in his defense, and that the court's failure to suspend the criminal trial, sua sponte, was, per se, a violation of the mandate of Penal Code section 1368. The section provides:

'If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded; and, from the time of such order, all proceedings in the criminal prosecution shall be suspended until the question of the sanity of the defendant has been determined, and the trial jury in the criminal prosecution may be discharged, or retained, according to the discretion of the court until the determination of the issue of insanity.'

In cases No. 104162 and 104188, Dr. Rourke E. Downey reported that petitioner's Wechsler's intelligence scale for children showed a verbal score of 72, a performance score of 60, and full-scale I.Q. of 63. The doctor stated that petitioner was in the 'low normal-moron area' but knew the difference between right and wrong. Dr. Walter Rapaport, stated that petitioner's mental examination showed 'an immature, impulsive, mentally retarded young man who shows fragmented thinking, poor judgment and poor comprehension'; he was of the opinion that petitioner understood the charges against him and the possible penalties and that 'in an immature sort of way understood the wrongfulness, unlawfulness and punishability relative to the offenses he committed and understood the nature and possible consequences at the time of their commission.'

In Case No. 105087, the medical examinations were made by Drs. Max Brannan and Robert G. Austin. Dr. Brannan reported that petitioner could not add, multiply or subtract, and he could not make explanations of very simple statements and that he remembered very little about his family. He concluded that petitioner was a simple, uneducated, illiterate individual who had very poor judgment, no usable insight into his situation and who 'never learned acceptable social behavior, including respect for legal precepts.' The doctor volunteered:

'I think the fact that he is so unlearned makes it very difficult for him to have any meaningful understanding of the legal procedures in which he is presently involved. That is not to say he is out of touch with reality or is psychotic but, if he only has his values to relate to, he cannot really understand what he hears with any usable understanding.'

Dr. Austin described petitioner as 'dull normal and uneducated' but expressed the opinion that he was capable of distinguishing right and wrong as applied to his acts. The doctor said he thought petitioner might have a seizure disorder because of a history of head injuries and blackouts and suggested that he be admitted to a hospital for evaluation of possible organic brain disease.

Despite the medical reports regarding petitioner's low level of intelligence, we are not persuaded, entirely, by petitioner's contention that each trial judge who presided at one of his criminal trials abused his discretion, as a matter of law, by failing, sua sponte, to suspend the trial in order to determine whether petitioner was insane within the ambit of Penal Code section 1368. The medical evidence in all three cases indicates that petitioner was an antisocial, belligerent individual who knew the difference between right and wrong. In fact, when commenting on petitioner's overall attitude,...