People v. Cisneros, Cr. 10333

CourtCalifornia Court of Appeals
Citation110 Cal.Rptr. 269,34 Cal.App.3d 399
Decision Date01 October 1973
Docket NumberCr. 10333
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Mark A. CISNEROS, Defendant and Appellant.

James T. Hendrick, San Francisco, for defendant and appellant (By appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., of the State of California, Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, W. Eric Collins, Nancy S. Reller, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison following his conviction of murder of the second degree (Pen.Code, §§ 187, 189). Having reviewed the various contentions made by defendant as set forth below this court concludes as follows: (1) there was no error in the finding that defendant was competent to stand trial, or in the proceedings leading to that finding; (2) the evidence was sufficient to sustain the verdict and judgment; (3) there was no error in failing to give instructions concerning an accomplice and the necessity of corroboration of an accomplice's testimony; (4) there was no error in failing to instruct the jury with respect to mistake of fact, or (5) with respect to the defense of others; (6) there was no prejudicial error in failing to relate the court's instructions on voluntary and involuntary manslaughter to the defense of diminished capacity; (7) there was no error in the verdict forms submitted to the jury; (8) there was no error in the instructions on reasonable doubt and the defendant's right to an acquittal; (9) there was no prejudicial error in the instructions on implied malice and second degree murder; and (10) the record fails to show that defendant was denied the effective assistance of counsel. The judgment must be affirmed.


On May 1, 1969, the defendant was arraigned on an information charging him with murder in violation of section 187 of the Penal Code. He appeared with counsel and entered a plea of not guilty. The court, at whose suggestion it does not appear, suspended criminal proceedings and appointed two psychiatrists, Dr. Terry and Dr. Sowers, to examine the defendant to determine whether there was any doubt concerning the competency of the defendant to understand the nature of the proceedings against him and to cooperate with his counsel in his defense, as contemplated by section 1368 of the Penal Code.

On May 15, 1969, the parties stipulated that the reports of the foregoing psychiatrists could be received in evidence and that the court could make a finding on those reports. At the hearing defendant's counsel urged the court to put more emphasis on the report of Dr. Sowers, than that of Dr. Terry because the latter had only interviewed the defendant for 5 or 10 minutes and because his report seemed 'rather inconsistent.' The court replied, 'Even Dr. Sowers doesn't say he's a 1368.' Whereupon defendant moved to have two additional psychiatrists appointed. The prosecutor objected and the court observed, 'Mr. Perry, let me tell you that there isn't a psychiatrist that I know--and I know many of them--in whose judgment I have greater confidence than James G. Terry. I've known him for over twenty-five years.'

Defendant's counsel then explained that his position was that he wanted a private psychiatrist from Walnut Creek to examine the defendant; that the defendant's family had secured funds for such an examination; and that he wanted the matter continued for two weeks.

The court replied that it could have no objection to the defendant's securing an examination by a private psychiatrist; that nevertheless it was going to then make a finding that the defendant was sane within the meaning of section 1368; and that even if a private psychiatrist indicated that the defendant was not competent to stand trial, such a finding would only create a conflict with the findings of Drs. Sowers and Terry.

Thereafter on July 9, 1969, the defendant entered an additional plea of not guilty by reason of insanity, and pursuant to the rpovisions of section 1027 of the Penal Code Dr. Sowers and Dr. Rapaport were appointed as psychiatrists to examine the defendant and to investigate his sanity. On September 29, 1969, in the department to which the case was assigned for trial, the issue of the defendant's competency to stand trial was submitted, pursuant to stipulation of counsel, to a second judge on the basis of the reports filed pursuant to the second appointment. The trial judge found that the defendant was competent to stand trial. The defendant then withdrew his plea of not guilty by reason of insanity.

The defendant now contends that he was denied due process of law and a fair and impartial trial, and that the trial court committed reversible error at the initial hearing to determine his competency to stand trial because of the predisposition of the court to favor Dr. Terry's opinion, and its failing to grant his motion for the appointment of additional independent psychiatrists, including a continuance to secure one of his own selection.

That there is no merit to this objection on appeal is apparent from the record. In the first place there is nothing in the record to demonstrate that there was anything brought to the attention of the arraigning judge which would give rise to, or that he ever entertained, a doubt as to the sanity of the defendant, as distinguished from a request to, or a belief on the part of, the arraigning judge, that an investigation be made to determine whether such a doubt existed. (See People v. Laudermilk (1967) 67 Cal.2d 272, 282--288, 61 Cal.Rptr. 644, 431 P.2d 228, cert. den. (1968), 393 U.S. 861, 89 S.Ct. 139, 21 L.Ed.2d 128; and People v. Merkouris (1959), 52 Cal.2d 672, 678--681, 344 P.2d 1, cert. den. (1960), 361 U.S. 943, 80 S.Ct. 411, 4 L.Ed.2d 364. Cf. People v. Pennington (1967), 66 Cal.2d 508, 515--521, 58 Cal.Rptr. 374, 426 P.2d 942.) Assuming the existence of such a doubt, the defendant by stipulating that the court resolve the matter on the basis of the two original reports waived his right to confront and cross-examine the reporting psychiatrists, and to demand and have a trial by jury on the issue of his competency to stand trial. (See People v. Hill (1967), 67 Cal.2d 105, 113--117, 60 Cal.Rptr. 234, 429 P.2d 586, cert. den. (1967), 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 607.) By the same token he waived his right to present further evidence on the issue. The judge's confidence in Dr. Terry could not nullify the foregoing conclusions. It would be strange for the court to appoint someone in whom it did not have confidence.

If it could be considered an abuse of discretion to refuse to set aside the stipulation and waiver so that the defendant could secure an expert of his own choosing, any prejudice occasioned thereby was dissipated by the proceedings which followed. No attempt to produce the testimony of an independent psychiatrist was made at the time of the second submission of the issue of the defendant's competency to stand trial to the trial judge. So far as the record shows all three psychiatrists whose reports were used believed the defendant was competent to stand trial. There is nothing in the record to the contrary. There is no merit to defendant's present contention.


The uncontradicted evidence in this case shows that: the Caucasian victim of the homicide, Jesse A. Welch, picked up John Florez, a Caucasian acquaintance of seven or eight years who was visiting in the bay area, about 6 p.m. on March 18, 1969; they spent the evening and early morning hours in Hayward, San Francisco and Oakland playing pool and drinking beer; (the victim had a blood alcohol reading of .02 percent ethyl alcohol indicating he was under the influence of that drug); at about 1:30 or 2 a.m. they made an assignation at a nearby hotel with two women they met on the street; a dispute developed between Welch and his partner over money; this dispute was continued out on the street after all left the hotel; the defendant intervened; an argument, punctuated by one or two shots fired by the defendant into the ground, occurred between Welch and the defendant in the street between the defendant's car and Welch's car; it culminated in the fatal shooting of Welch, at the driver's side of defendant's vehicle, by a bullet which was fired over and through the roof of the defendant's convertible from the passenger's side; the defendant and his companions fled; police, who were near the scene and heard the shots, observed and broadcast a description of the vehicle; and the defendant and others were apprehended as a result of a speedy pursuit. Defendant contends that the evidence is insufficient to establish that he was the person who fired the fatal shot.

The witnesses for the prosecution, present at the shooting, in addition to Florez, were Sherry Young, the woman with whom Welch had the dispute, and Willie Harris, an occupant of the defendant's car. Harris had plead guilty to being an accessory after the fact to the homicide, and had received probation without any jail sentence as part of an agreement to testify against the defendant. The defendant did not testify but presented the testimony of Melvin Carter, a bystander. Neither side called Jewell Johnson, who was a passenger in the rear seat of defendant's car at the time of the occurrence, and who was identified when his car was stopped after the chase following the shooting. The prosecution also offered evidence which showed that: Harris was driving the defendant's car at the time it stopped; a .25 caliber automatic pistol was found along the route followed by defendant's car in its flight; the gun had one live round jammed in the chamber, and one left in a seven-round clip; four cartridge shells found at the scene, the fatal bullet recovered from the...

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