People v. Campbell

• Citation: 63 Cal.App.3d 599,133 Cal.Rptr. 815
• Decision Date: 28 October 1976
• Docket Number: Cr. 8503
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Franklin CAMPBELL, Defendant and Appellant.

Page 815

133 Cal.Rptr. 815

63 Cal.App.3d 599

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Franklin CAMPBELL, Defendant and Appellant.

Cr. 8503.

Court of Appeal, Third District, California.

Oct. 28, 1976.

Evelle J. Younger, Atty. Gen., by Edmund D. McMurray, Deputy Atty. Gen., for plaintiff and respondent.

Joe Franklin Campbell in pro per.

Alan M. Caplan, San Francisco, for defendant and appellant.

REGAN, Associate Justice.

After a trial by jury, defendant was found guilty of the following crimes (listed by information number):

No. 15144--second degree burglary (Pen.Code, § 459) as charged in Count I.

No. 15147--petty theft (Pen.Code, § 488), a lesser included offense of grand theft (Pen.Code, § 487, subd. 1) as charged in Count I; grand theft of a firearm (Pen.Code, § 487, subd. 3) as charged in Count II; and receiving stolen property (Pen.Code, § 496) as charged in Count III.

No. 15170--attempted theft of an automobile (Veh.Code, § 10851) as charged in Count I.

No. 15216--theft of an automobile (Veh.Code, § 10851) as charged in Count I; and forgery of a check (Pen.Code, § 470) as charged in Count II.

Defendant appeals from the judgments of conviction contending:

Trial on Mental Competence

1. Pretrial determination of competence was not supported by the evidence.

2. Trial court should have, Sua sponte, ordered further psychiatric testing.

3. Trial court failed to give required admonition.

4. Prejudicial error was committed by admission into evidence of a subsequent act.

5. Failure of the court to instruct as to evidence of other offenses was prejudicial error.

6. Defendant was denied adequate counsel at this stage of the jury trial.

Trial on Criminal Charges

1. Defendant was denied effective assistance of counsel during this portion of the trial.

2. Defendant's conviction for violating Penal Code section 496 must be reversed.

3. Defendant cannot stand convicted of grand theft and petty theft.

4. Trial court erroneously ruled with respect to defendant's motion for sentencing pursuant to Penal Code section 1168.

5. The sentence in this case constitutes multiple punishment prohibited by Penal Code section 654.

Trial on Mental Competence ¹

The defendant called as his expert witness Dr. Raitt, a medical doctor with a specialty in psychiatry, who works in public service with the Glenn County Mental Health Program.

Dr. Raitt had interviewed defendant for approximately 90 minutes. He had read police reports, a prior evaluation by a Dr. Maguire, and a social and vocational evaluation prepared in 1969. Based upon the foregoing, Dr. Raitt concluded that defendant suffered from '(p)robable mental retardation, mild to border line in type.' He stated that defendant understood the charges against him and understood that he had an attorney and appreciated the attorney's function. Dr. Raitt was of the opinion that defendant was capable of standing trial. However, he also indicated that there was a 'possibility' the defendant might not understand the nature of the proceedings against him. Further evaluation would be necessary to determine whether or not defendant was definitely mentally retarded.

The defense called one other witness, a friend of the defendant, who testified he did not think defendant was 'all there.' This opinion, however, was apparently based upon what he had read in the newspapers, and not upon his personal observation of the defendant.

The People called Dr. Cole, a psychiatrist with some experience in prison work. Dr. Cole had interviewed the defendant for a little over one hour. Apparently Dr. Cole reviewed the same materials that Dr. Raitt had read. Dr. Cole made the following diagnosis: 'Mild mental deficiency with a passive-aggressive mode of behavior, primarily passive-dependent in type, with drug dependence on multiple types of drugs, primarily alcohol, LSD, and cocaine.' Defendant's IQ range of 69--79 placed him in the category of the mentally retarded. Dr. Cole referred to his condition as 'mild mental retardation,' and concluded that this condition did not interfere with defendant's understanding of the proceedings and he was competent to help in the defense of his case.

James Wright, a cellmate of the defendant, testified for the prosecution. He related to defendant that he had been adjudged criminally insane in Texas, had been incarcerated in a state hospital for 90 days, and then had been released from all further responsibility. Wright denied that he was instructing defendant how to act in his case. Wright stated that he had been recently charged with attempted escape and conspiracy to escape; his coconspirator was defendant.

Ted Leifried, a county jail supervisor, was called by the People. Leifried had come into contact with defendant on a number of occasions. He felt that defendant's conduct was normal. At one time he had eavesdropped on defendant and heard him tell another prisoner he (defendant) had talked to Wright and intended to change his plea to not guilty by reason of insanity. He told this other inmate he would serve less than a year in a state hospital, and then be eligible for social security or welfare.

Lew Anderson, a deputy sheriff acting as a jailer, testified that defendant had adjusted to jail 'as well as anybody could be expected.' At one point defendant made an unsolicited statement to Anderson to the effect that he (defendant) would go to a mental hospital for about six months and then be back out on the street.

Trial on Criminal Charges

No. 15144--Denny's Restaurant Burglary

On the evening of June 22, 1975, the defendant was observed taking a large plate or tray of beef from the Denny's Restaurant in Willows. Defendant was not employed at the restaurant at the time and had never been given permission to remove any meat from the walk-in cooler box.

No. 15147--Theft of Jacobs' Purse

On June 27, 1975, Betty Jacobs left her purse in her car while she ran an errand. Among other items in her purse was a .25 caliber semi-automatic pistol and a 1923 silver dollar with distinctive markings.

The defendant was seen taking Jacobs' purse from her car.

The defendant used the silver dollar in purchasing some liquor. ² The pistol was recovered from a dresser in a house belonging to a friend of the defendant.

Jacobs never recovered her stolen purse. To replace the missing items (excluding such items as the pistol and silver dollar) cost $186.30.

No. 15170--Attempted Theft of an Automobile

On July 29, 1975, at approximately 6:30 p.m., a person resembling defendant was seen attempting to start Jack Martin's MG convertible. The witness advised Martin who went to his car and asked defendant what he was doing. The defendant jumped out of the MG and fled. Martin was relatively sure someone had attempted to start his car.

No. 15216--Theft of Automobile

In the early morning hours of July 29, 1975, Jeffery Landon parked his Datsun pickup truck in front of his father's office. When Landon returned for it later in the day he found it was missing.

On that same day, the defendant picked up two girls in Landon's pickup and they went for a joyride. Defendant told the girls he had purchased the truck. The trio involved the truck in an accident, and it was later abandoned.

No. 15216--Passing of Forged Check

On July 26, 1975, a bartender at the Elkhorn Lodge cashed a check for the defendant. The check was made out to 'Joe Campbell' in the amount of $30 and was signed 'John F. Bach.' The check was ultimately returned unhonored by the bank.

The check cashed by defendant contained an account number belonging to customer Kim Bass. Bass had never authorized anyone other than herself to write a check on this account. The handwriting on the check appeared to be that of the defendant. Arguments: Trial on Mental Competency

1. Sufficiency of the Evidence.

Defendant contends the pretrial determination of competence was not supported by the evidence. This contention is without merit.

A defendant is presumed to be mentally competent unless at the Penal Code section 1368 hearing it is proved by a preponderance of the evidence that he is mentally incompetent. (Pen.Code, § 1369, subd. (f); People v. Superior Court (Campbell) (1975) 51 Cal.App.3d 459, 464, 124 Cal.Rptr. 158.) In determining whether a person is presently sane within the meaning of section 1368, the following standard is to be applied: is the defendant capable of understanding the nature and purpose of the proceedings taken against him; does he comprehend his own status and condition in reference to such proceedings; is he capable to assist his attorney in conducting his defense, or able to conduct his own defense in a rational manner? (People v. Pennington (1967) 66 Cal.2d 508, 518--519, 58 Cal.Rptr. 374, 426 P.2d 942; People v. Crosier (1974) 41 Cal.App.3d 712, 716, 116 Cal.Rptr. 467.) On appeal, the finding of the trier of fact upon the issue of competency to stand trial cannot be disturbed if there is any substantial and credible evidence in the record to support the finding. (See People v. Belcher (1969) 269 Cal.App.2d 215, 220, 74 Cal.Rptr. 602.)

Viewing the record in the light most favorable to the People, as the party who prevailed below, and presuming in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence (see People v. Crosier, supra, 41 Cal.App.3d at p. 717, 116 Cal.Rptr. 467), defendant's 'present sanity' or competency to stand trial was clearly established by the testimony of the two psychiatrists standing alone. (See People v. Belcher, supra, 269 Cal.App.2d at p. 221, 74 Cal.Rptr. 602; see also, People v. Cisneros (1973) 34 Cal.App.3d 399, 406--407, 110 Cal.Rptr. 269.) ³ The defendant's bare allegation of insufficiency of the evidence is simply not supported by the record. (Cf. People v. Sanchez (1969) 275 Cal.App.2d 226, 231, 79 Cal.Rptr. 781.)

2. Further Psychiatric Testing

Defendant contends the...