People v. Day

• Decision Date: 13 May 1988
• Citation: 247 Cal.Rptr. 68,201 Cal.App.3d 112
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Burton DAY, Defendant and Appellant. Crim. C001735.

Page 68

247 Cal.Rptr. 68

201 Cal.App.3d 112

The PEOPLE, Plaintiff and Respondent, v. Burton DAY, Defendant and Appellant.

Crim. C001735.

Court of Appeal, Third District, California.

May 13, 1988.

[201 Cal.App.3d 114] Mary G. Swift, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael J. Weinberger and George M. Hendrickson, Deputy Attys. Gen., for plaintiff and respondent.

DEEGAN, Associate Justice. ^*

Following a jury trial, defendant Burton Day was convicted of one count of violating PENAL CODE SECTION 245¹, subdivision (b) (assault with a deadly weapon) and one count of violating section 148 (resisting a police officer). He was sentenced to four years in state prison and appeals from the ensuing judgment. Defendant contends the trial court erred in failing to determine retroactively whether he had been incompetent to stand trial even though the new trial motion tendering the issue was withdrawn.

Defendant further contends his trial counsel was ineffective because he failed to timely challenge his competence. For the reasons expressed below, we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Given the nature of the contentions on appeal, a brief recitation of the facts underlying the offenses will suffice. On August 17, 1985, after being informed by a motorist that a pedestrian had thrown an object at his car on Interstate 80, California Highway Patrol Officer Robert Boobar spotted defendant walking along the freeway. Defendant matched the description given by the motorist. When asked by the officer if he had thrown an object at a passing car, defendant said, "No," and started to walk away. Boobar noticed that defendant had rocks in his hand; he informed defendant that he was under arrest. Defendant began to walk away again. A physical confrontation ensued between defendant and the officer, culminating in defendant striking Boobar on the head with an object. The officer suffered a cut and a bruise, vertigo and nausea, and intermittent hearing loss.

Defendant did not testify at trial. The jury found him guilty of assault with a deadly weapon (§ 245, subd. (b)) and resisting a police officer (§ 148). The verdict was entered on November 15, 1985. Defendant appeared before the court on December 13, 1985, for sentencing. In the statement in support of probation, defense counsel requested a psychologist's evaluation to determine defendant's competence pursuant to section 1368.

In support of his request, counsel asserted that before trial defendant declined to discuss the case and during trial "spent his time reading, doodling and acting as if the proceedings did not involve him at all." The prosecutor challenged defense counsel's failure to come forth with this request earlier. Defense counsel told the court that before the trial he received an oral report from a psychiatrist saying that defendant "certainly had problems, but ... given the case history and information he had been provided with he was not going to say [defendant] was 1368. [p] After I had confirmed the case for trial and actually was picking a jury, I think I got a written report from the psychiatrist saying, Well, maybe he's 1368 because he can't cooperate with counsel." Defense counsel also said that he discussed the matter at that time with his supervisor who instructed him to proceed with the trial. ²

The trial court suspended criminal proceedings and appointed a psychologist and a psychiatrist to evaluate defendant. On February 10, 1986, after a court trial, defendant was found to be suffering from a mental disorder in that he "is not able to cooperate in a rational manner with counsel in presenting his defense and [is] unable to understand the proceedings by way of inability to cooperate." Defendant was committed to Atascadero State Hospital.

In August 1986, defendant was certified competent and returned to the court for further proceedings. On August 7, 1986, defendant filed a motion with the trial court for a new trial on the ground that he had been incompetent to stand trial. In the moving papers, defense counsel contended that prior to trial he had observed defendant's "very guarded behavior," and refusal to cooperate in preparing a defense, and his violent outbursts, and "therefore sought a confidential psychiatric evaluation." The papers further asserted that "[t]he examining doctor initially reported that Mr. Day was clearly suffering from mental problems but could not say they interfered with Mr. Day's ability to cooperate with counsel. Just as trial was commencing, the psychiatrist reported that Mr. Day's mental problems likely did impair his ability to cooperate with his defense, but the degree of interference was difficult to tell with the information then available, and other psychiatrists might well conclude that because On August 15, 1986, the court found that defendant had been restored to competence; it therefore reinstated the criminal proceedings. The judge then addressed defendant's new trial motion. Defense counsel orally asserted that although he had initially received an oral report from the psychiatrist, Dr. Thomson, to the effect that defendant had problems but probably could proceed, two days into the trial he received "a written report that said, probably, he does have problems." Counsel stated that he then called Dr. Thomson who told him that "another psychiatrist might well say he could still cooperate."

much of Mr. Day's intellectual functioning appeared to be intact, that he could cooperate with counsel for trial."

The court agreed to review the report from Dr. Thomson in its consideration of defendant's new trial motion and ordered that the report be placed in the record. The court also appointed another psychiatrist, Dr. Normington, to evaluate defendant. The court inquired of defense counsel why he failed to raise the section 1368 issue when he received Dr. Thomson's report. Counsel responded that defendant "had been to some degree cooperating, to some degree paying attention and I was uncertain." He added that because of the doctor's oral opinion that other psychiatrists might not agree with him and the defendant's cooperation at trial, he "wasn't in a position to say for sure that he was or wasn't 1368...."

On September 17, 1986, defendant reappeared before the court on the new trial motion. At that time, the court said it had read and agreed with the statement of facts set forth in the prosecution's opposition papers. That document states: "Prior to the jury trial commencing, defendant's counsel in chambers indicated to the [Court] and myself that he had had the defendant examined by a psychiatrist pursuant to Penal Code Section 1368 and based on the psychiatrist's evaluation and his interviews with the defendant, he was prepared to proceed. He indicated that if at any time during the trial he thought that the defendant's mental condition had changed, he would interrupt the proceedings. He did not do so." The court also asserted that during the trial it was never apprised of Dr. Thomson's written report.

Defense counsel then informed the court: "Dr. Thomson gave me an oral report that said that [defendant] obviously had psychiatric problems but that he didn't think they would interfere. Then after that [my supervisor] and I went to talk to [defendant] and then I called Dr. Thomson back and talked to him some more and then, a few days later, Dr. Thomson gave me an oral report that said he thought Mr. Day probably shouldn't, couldn't cooperate for trial. But then he also said he wasn't at all sure other psychiatrists would agree with that. [p] Now I think I got that report the day we started picking the jury. Then I got a written report that I actually got ... after we had taken the testimony of the key prosecution witness.... And the written report said this man is not capable of standing trial. At that point I went back down and discussed it with my supervisor, who said 'Let's at least finish with the trial....' "

The court requested that defense counsel prepare a declaration setting forth the information he received from Dr. Thomson. That declaration, filed October 1, 1986, asserts the following: Prior to the preliminary hearing, defense counsel "became concerned with [defendant's] lack of cooperation with counsel in not discussing the case beyond simple denial of the charges." At counsel's request, the Municipal Court Magistrate appointed Dr. Thomson to report confidentially to defense counsel. On the day before the trial confirmation date, Dr. Thomson orally told counsel that defendant had cooperated with him and that, therefore, defendant "was not currently incapable of cooperating with counsel...." Defendant "continued not to talk with counsel." Counsel again contacted Dr. Thomson. Defense counsel and his supervisor then interviewed defendant in jail; defendant said he wanted to get his own attorney. Following the interview, defendant "began to talk with counsel again, though he still insisted he was going to get his own counsel and would only discuss On October 10, 1986, defendant reappeared before the court for the hearing on the new trial motion. The trial court stated that it had before it the reports of Drs. Thomson and Normington. ³ Defense counsel told the court that Dr. Thomson's written report was followed by an oral report which "in effect, rescinded the written report." Counsel further asserted, "It is plain that Dr. Thomson told me in an oral report that's after the date of the written report that we could proceed." After some discussion with the court, defense counsel told the court that "defendant told me this morning that he would prefer not to proceed on this motion." The court asked defendant personally whether he wished to withdraw his motion for a new trial; defendant responded affirmatively. The new trial motion was withdrawn. The court...