People v. Cortez

• Decision Date: 07 December 1970
• Docket Number: Cr. 8495
• Citation: 13 Cal.App.3d 317,91 Cal.Rptr. 660
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Adonai Barahona CORTEZ, Defendant and Appellant.

Page 660

91 Cal.Rptr. 660

13 Cal.App.3d 317

PEOPLE of the State of California, Plaintiff and Respondent, v. Adonai Barahona CORTEZ, Defendant and Appellant.

Cr. 8495.

Court of Appeal, First District, Division 1, California.

Dec. 7, 1970.

Ronald Ruiz, San Jose, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Gary Garfinkle, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

SIMS, Associate Justice.

Defendant has appealed from the denial of his motion to vacate a judgment under which he was convicted and sentenced for burglary in the second degree following his plea of guilty, and from the denial of his motion to vacate that plea. He contends that he was denied the effective assistance of counsel because his attorney, in recommending the guilty plea, failed to consider the defense of diminished capacity. It is concluded from an examination of the entire record that the trial court erred in denying the defendant's motions and that the orders should be reversed.

On May 29, 1967, a little after 1 a.m., the complaining witness, who had dozed off in her living room watching television, awoke to find the door of her apartment open. She closed and locked the door, went through her kitchen into her bedroom, and discovered under her bed a man whom she identified at the preliminary hearing as the defendant. She screamed and ran out of her apartment, and he fled behind her. Some time later while she was waiting for her boy friend, she saw the same man standing outside of the window exposing himself. When she opened the door to tell him to go away, he stated to come toward the screen door. She shut the door real fast and screamed. A neighbor ran after the offender.

Following a preliminary examination, which brought out the foregoing facts, the defendant was held to answer a charge of burglary (Pen.Code, § 459), but a second count of assault with intent to commit rape (Pen.Code, § 220) was dismissed by the magistrate. Nevertheless, an information was filed charging the defendant with both offenses. According to a letter from defendant's attorney, which was received in evidence at the hearing on the motions, the defendant's motion to dismiss the second count for lack of probable cause (Pen.Code, § 995) was denied. The defendant entered pleas of not guilty, and not guilty by reason of insanity. The report of one of the examining psychiatrists (see Pen.Code, § 1027), which is part of the record of the hearing on the motions, concluded, 'He can probably cooperate with his attorney in his own defense * * * in my opinion the subject is legally sane now and was legally sane at the time of the offense.'

Thereafter, the defendant entered his plea of guilty to burglary in the second degree, proceedings were suspended, and on October 6, 1967 the defendant was committed to Atascadero State Hospital for observation as a mentally disordered sex offender. A report dated December 12, 1967 concluded that the defendant was a mentally disordered sex offender, but that he was not amenable to treatment in a hospital setting. The defendant was returned to court and sentenced on January 26, 1968.

The motions under review were filed July 1, 1969, together with the declaration of defendant's present counsel, and points and authorities in support of the motions. After several continuances the motions came on for hearing. At the hearing the court received in evidence a letter from the defendant's former attorney, dated September 21, 1969, the report, dated July 12, 1967 of one of the psychiatrists who examined the defendant on July 6, 1967 in connection with his insanity plea, the report dated December 12, 1967 of the superintendent and medical director of Atascadero State Hospital under which the defendant was returned to court and sentenced, and a medical report prepared in the Spanish language in August 1964, together with a translation thereof. Testimony was received from the defendant's mother, from the interpreter, who had translated the proceedings which resulted in defendant's conviction and who also had translated the interview of the defendant by the examining psychiatrist, and from the deputy district attorney who had handled the case for the prosecution.

The mother testified that her son (who was born March 27, 1934 according to the psychiatrist's report) had problems when he was a baby; that she hired the attorney who represented him in the prior proceedings; that she told the attorney that he was in grave condition until he was four years old, could not speak when he was six years of age, and had to be operated on at the age of seven in order that he could speak; and that she furnished the attorney with a medical report concerning the defendant from the office of Social Security dated in August 1964. This report ¹ as translated concludes as follows: 'Behaviour relates to a cerebral defective organic condition and psycho-sexual disturbances.'

The interpreter, who translated the court proceedings and the interview by the psychiatrist, testified that the defendant could understand the translated words of the doctor's questions; that many of his answers were not responsive and indicated that the defendant did not understand the meaning of the phrases; and that it was necessary to repeat those questions. He opined that the defendant had a six-year-old mentality. ²

The psychiatrist's report stated that the history he received from the defendant's attorney indicated, 'The defendant had been said to have had a malady since the age of birth and no talking until age seven with retardation in school, with a history of having regular work at a car wash place, but going to pieces when he drinks.' The doctor noted, the facts concerning the pending charge, as set forth above, and that 'He had been previously arrested for the same thing and peeping and been told to leave New York State. There was no history of hospitalization.' The report continues, 'When I saw the subject, he was pleasant but somewhat puzzled in manner, given to grinning inappropriately. His story was difficult to extract from him, and he was obviously overcome by guilt.' The history, taken by the doctor with the aid of the interpreter, reportedly revealed among other things that the defendant drinks beer frequently on weekends, and that he had been drinking beer on the night of the incident for which he was arrested; and that he gave irrelevant answers to probing questions about the events which resulted in the charges against him.

The doctor concluded: 'This subject does show evidence of being in at least a dull normal intelligence and maybe below that, but at any rate, he does not seem to be suffering from the condition to an extent that would interfere with his ability to know the nature and quality of his act, the nature and purpose of the action against him, and the difference between right and wrong as it pertains to his offense. He can probably cooperate with his attorney in his own defense. When, however, he imbibes alcohol, the substance's toxic effect on him is to the extent that these criteria do not apply. However, he is certainly aware of this, and the intoxication is willful and, therefore, irrelevant. Consequently, in my opinion the subject is legally sane now and was legally sane at the time of the offense.'

The letter from the prior attorney states, 'I always found it extremely difficult to talk to Mr. Cortez and to understand him. Most of the time he would remain silent and not even answer my questions. During all this period of time Mr. Cortez's mother was very concerned about his behavior and mental condition and wanted him treated at an institution or hospital. I recall she was against him getting out free without some treatment. So being concerned with her desires and concern I confess I did not make an allout effort to obtain a not guilty verdict; and did withdraw the two Not guilty pleas and entered a plea of guilty to second degree burglary. I recall that I thought at the time that he had a good chance of getting a Not Guilty verdict based on the testimony at the preliminary, but I then, as I have mentioned then began of (sic) thinking of ways to carry out the desires of his mother; thus the plea entered with a period of observation at Atascadero and possible treatment. Since my attention was then taken away from a not guilty verdict I did not consider the defense of diminished capacity of the defendant to commit a crime.'

The prosecutor agreed with the attorney's version of the events leading to the plea and the commitment for observation, but he disputed the content of the last sentence quoted above. He testified that the defense attorney advised him of the mother's desire that her son receive medical treatment, and that he told the attorney that 'the only way he could get treatment was through the Criminal Court or at least some observation, some diagnostic studies was through a plea of guilty and he could be sent to the hospital for sex offenders and then we could see which way the thing would go.'

The prosecutor remembered discussing the fact of intoxication with the defense attorney who told him that the boy drank too much; and he recalled discussing the defense of diminished capacity as far as the defendant was concerned because of his prior mental condition, but he could not recall any discussion of diminished capacity because of the defendant's intoxication. He acknowledged that both sides were motivated to determine what best could be done to secure psychiatric help, some sort of treatment for the defendant. He stated that after discussing the merits of the case it was agreed that the second count would be dismissed in return for a plea to the first count, and that the defendant would be sent to Atascadero for observation.

The defendant's mother testified that the attorney she hired for her son advised her that the defendant would be sent to the hospital for treatment. She acknowledged...