People v. Elston
| Decision Date | 15 April 1982 |
| Docket Number | Cr. 4750 |
| Citation | 182 Cal.Rptr. 30,130 Cal.App.3d 721 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. David Russell ELSTON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
APPEAL from a judgment of the Superior Court of Mariposa County. Blaine E. Pettitt (assigned by the Chairperson of the Judicial Council) and Dean C. Lauritzen, Judges. Reversed.
On September 15, 1979, appellant David Russell Elston was arrested for felony child abuse (Pen.Code, § 273d). On September 24, 1979, appellant waived his right to a preliminary examination in the Justice Court of Mariposa County.
An information (No. 671) charging felony child abuse was thereafter filed in the Mariposa County Superior Court on September 24, 1979, and arraignment thereon was set for 5 p. m. that same day.
At arraignment, the superior court appointed the same attorney to represent both appellant and his codefendant Donna Sue Brown.
Appellant and Brown were not informed of their right to separate counsel in the event of a potential conflict, nor did the court inquire into the propriety of joint representation.
Both defendants were arraigned, waived their right to a jury, and pleaded not guilty by reason of insanity. The court appointed two psychiatrists to examine each of the defendants and to report to the court as to their sanity at the time of the offense.
On October 26, 1979, appellant and Brown waived their right to a jury trial on the insanity issue and stipulated that the issue could be submitted on the basis of the two psychiatric evaluations. The court found that both appellant and Brown were legally sane at the time of the commission of the offense and therefore found them each guilty.
On November 9, 1979, the court denied probation and sentenced appellant to state prison for the maximum term of three years. A timely notice of appeal followed.
On September 15, 1979, appellant David Russell Elston and Donna Sue Brown, a couple living together, were arrested by the Mariposa County Sheriff's office following a report that Nathan, the 18-month-old son of Ms. Brown, was being abused. The incriminatory circumstances against appellant and his codefendant consisted of Nathan's physical condition and the defendants' statements. Nathan's person copiously bespoke both abuse and neglect. He had a large bruise on his face and numerous other marked bruises on his back, arms, legs, buttocks and thighs. There appeared to be bite marks on his nose, waist and ankle. His nose and mouth were covered with scabs.
The medical report accompanying the probation report contained the notation, "other faded bruises of [sic ] all parts of body." Nathan was hospitalized for 10 days.
When questioned on September 15, 1979, appellant indicated the child had fallen from a porch, that the facial sores resulted from the child's having been bitten by ants, that appellant's responsibility for Nathan's condition consisted of possibly having bitten him during play, having spanked Nathan once and possibly having bruised Nathan's shoulder when he grabbed him. Appellant stated that he spanked Nathan only to discipline him. He admitted that it was his fault the child had received no medical attention. In contrast, Ms. Brown admitted she had caused the large bruise on the right side of his head, that she hit Nathan to "try and shut him up," that she had knocked him down and that she had spanked and hit Nathan approximately five times in the past ten days. She also accused appellant of having spanked Nathan five to six times in the past seven days. 1
Thereafter, the codefendants' respective admissions and accusations against each other shifted at each reported instance.
At the September 24, 1979, arraignment, each defendant entered a plea of not guilty by reason of insanity. Each defendant also acknowledged the plea was an admission of the accusation. Appellant admitted that he beat the child so severely as to put the child in the hospital. Ms. Brown's response to whether she had similarly beaten the child was, "to a certain extent, yes." When pressed to state specifically what part she played in the apparent beating of her son, Brown stated initially that she "didn't take him to the hospital when he fell off the back porch." She then stated, and she admitted inflicting the bruises on Nathan's shoulders.
Appellant specifically admitted inflicting the wounds on the child's rear and the bite marks.
In the respective statements to probation officers, appellant admitted striking the child severely only once, although he did admit inflicting two or three bite marks in play. He also stated that he and Brown were preparing to take Nathan to the hospital on the morning he was arrested. Brown at that time characterized the proceedings as a "bum rap." She said that she and appellant had not done all the things they were accused of doing, that they had not beaten the child and that she and appellant were guilty only of not taking him to the hospital for necessary medical care.
The reports of two court-appointed psychiatrists concluded that each of the defendants was legally sane at the time of the commission of the offense. One report, however, expressed doubt as to whether appellant had the substantial capacity to conform his conduct to the requirements of the law. Although concluding that appellant was legally sane, Dr. Brannan observed that appellant may have "an explosive personality," diminishing appellant's ability to "conform his conduct [to the requirements of the law]." Dr. Brannan recommended further personality tests and an EEG to complete the record.
Dr. Lloyd's psychiatric evaluation of appellant also concluded that he was legally sane at the time of the offense. The evaluation did note, however, that appellant was diagnosed as having a schizoid personality in 1976. Dr. Lloyd also concluded, in part: "[p] Although I am convinced that the defendant was legally sane ... I am convinced that he has significant emotional problems which contribute to his tendency to abuse young children."
The probation report concerning appellant listed four circumstances in aggravation and stated that "There appears [sic] to be no circumstances in mitigation." The probation officer's conclusions recommended that appellant be sentenced to state prison for the upper term. Appellant's probation report further noted appellant's involvement in a prior episode involving child molestation and abuse in which the child apparently later died. The report also stated that appellant left the state, was returned to California in connection with the prior charges, and had been released on bail pending charges on two counts of perjury. Those charges were pending at the time of the instant offense.
The probation report noted, "The nature and seriousness and circumstances of child abuse is very, very serious." The cruelty of the abuse and the failure to take the child to the hospital, the victim's vulnerability, the defendant's prior criminal involvement, and a suggestion that he "induced" Ms. Brown to participate in the abuse were listed as aggravating circumstances in appellant's probation report. The only aggravating circumstance listed in Ms. Brown's report was the victim's vulnerability. Mitigating factors listed for her included: "[t]he defendant was a passive participant and played a minor role in the crime"; that she had no prior record, that she voluntarily admitted wrongdoing at an early stage and that she would have taken the child to a doctor but for her fear that the doctor would discover appellant was involved in another child abuse case and appellant would be arrested.
The probation officer recommended Ms. Brown be placed on felony probation for two years, with one year in the county jail. She was so sentenced. The remarks, if any, of counsel in Ms. Brown's behalf at sentencing have not been transcribed. As to appellant, however, counsel made no presentation or objection to any of the findings or conclusions of the probation report, except to argue for a 90-day study pursuant to Penal Code section 1203.03. The study request was premised on the psychiatric reports' indications that appellant had serious personality and emotional disturbances.
The court, in determining whether probation was warranted for appellant, stated that it considered the indication in the psychiatric reports that he "does have a problem that makes him a danger to others ...." The court then listed the circumstances in aggravation which were considered and stated that it agreed with the probation report's conclusion "that there are no circumstances in mitigation." The court denied probation and sentenced appellant to the upper term of three years.
Appellant raises three issues. First, he contends the trial court erred in failing to advise him of his right to separate counsel. Second, he contends joint representation of him and his codefendant by one attorney denied him effective assistance of counsel. Finally, he cites as error the court's failure to recognize appellant's mental condition as a mitigating factor.
Because the conviction must be reversed by reason of conflict arising between the codefendants, we need not address appellant's contentions regarding the court's alleged failure to consider his mental condition as a mitigating circumstance.
Initially, we consider appellant's contention that the trial court erred in...
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