People v. Harvey

• Decision Date: 02 February 1984
• Docket Number: Cr. 6451
• Citation: 151 Cal.App.3d 660,198 Cal.Rptr. 858
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Naomi HARVEY, Defendant and Appellant. (F001174).

Page 858

198 Cal.Rptr. 858

151 Cal.App.3d 660

The PEOPLE, Plaintiff and Respondent, v. Naomi HARVEY, Defendant and Appellant.

Cr. 6451 (F001174).

Court of Appeal, Fifth District, California.

Feb. 2, 1984.

As Modified Feb. 16, 1984.

Quin Denvir, State Public Defender, Sacramento, under appointment by the Court of Appeal, and Lisa Short, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Ward A. Campbell, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HAMLIN, Associate Justice.

Defendant was charged with murder (Pen.Code, § 187) by personal use of a firearm (Pen.Code, § 12022.5). ¹ While represented by the public defender, defendant pleaded guilty to second degree murder and admitted personal use of a firearm. The court sentenced defendant to state prison for 15 years to life plus two years for the firearm use.

Almost 11 months after she pleaded guilty, defendant moved, through a new attorney, to vacate her guilty plea and to set aside the judgment of conviction based thereon. The sentencing court determined it lacked jurisdiction to consider the motion. This court reversed with directions. Thereafter the trial court heard and denied defendant's motion. Defendant appealed and filed a certificate of probable cause. ² .

THE FACTS

At the time of the offense to which she pleaded guilty, defendant was approximately 40 years old and had been an ordained minister since her late teens. In December 1979 she was employed by the Pentecostal Church of God in the State of Washington, where she lived in a small logging community. Although defendant was unmarried, she had raised more than a dozen children and adopted seven or eight of them. At the time of the offense, her youngest children were three and six years old.

Prior to her employment by the Pentecostal Church of God in the State of Washington, defendant traveled with a religious singing group and recorded several albums. Through this group she met Tommie Lou Morton. From about 1975 to the time of the offense, defendant had lived intermittently with Morton. Defendant had made a "death bed" promise to Morton's father to care for Morton. According to defendant, Morton had a history of psychological problems, as did Morton's sister, Ada Nation, who also lived with defendant in December 1979.

In 1976 Morton became reacquainted with the victim, Shipley, who knew both Morton and defendant through religious activities. Like defendant, Shipley was an ordained minister. Morton went to live with Shipley in Stockton, California. A stormy relationship among these three women ensued in the years between 1976 and the time of the offense. Morton lived sometimes with defendant in Washington and sometimes with Shipley in Stockton. This prompted defendant to make numerous trips to Stockton.

In December 1979 defendant, Morton, Nation, a man named Frank Bangs, and two of defendant's adopted children spent Christmas with Morton's mother in Arizona. Within the six months preceding that Christmas visit, defendant's father (with whom defendant had been very close) died, and three of her adopted children suffered severe accidents or illnesses. Defendant had consulted her physician because of the stress related to these events and had been prescribed some antidepressant medication. Before returning to Washington, the group stopped in Oakdale, California, to enable Morton, who had been living with Shipley, to pick up her car and some personal effects.

However, after traveling to Stockton with Nation and Bangs, Morton changed her mind and decided to stay with Shipley. Shipley then accompanied Morton back to Oakdale, where Morton told defendant of the change in her plan. Defendant became upset and argued with Morton. Defendant left her house trailer, presumably to confront Shipley, who was waiting in Morton's vehicle, and Morton followed. During the ensuing confrontation, defendant had grasped the doorframe of Morton's vehicle and bent it six inches away from the car; following this, defendant apologized to Morton and permitted her to get into the car. Defendant then began walking away, but she turned suddenly and fired several shots from a revolver through the windshield. The shots struck Shipley, who died about two hours later as a result of the wounds. The shooting occurred on January 9, 1980, and defendant was arrested on the same date.

Defendant was incarcerated in the Stanislaus County jail, and within two days her mental condition had deteriorated to such an extent that she was confined in a padded cell. Because of defendant's suicidal depression, she was sedated by the jail physician. Deputy Public Defender Timothy Helfer, who had been appointed to represent defendant, contacted Dr. Patricia White. Dr. White has been a psychiatrist since 1954, is chairperson of the forensic committee for the Central California Psychiatric Society, is a consultant for the California Youth Authority, and is board certified in both psychiatry and forensic psychiatry. Dr. White has qualified on numerous occasions to testify on the mental status of criminal defendants and has been called as an expert witness by both prosecution and defense counsel. Helfer believed she was a highly qualified psychiatrist.

Dr. White's first contact with defendant occurred on January 11, 1980, two days after the killing. Dr. White directed her examination to two areas of concern expressed by Helfer: (1) the immediate mental and emotional state of defendant and (2) the probable mental state of defendant at the time of the killing. Dr. White made a diagnosis of significant depression in a nonpsychotic fashion and recommended to the jail physician that defendant's medication be continued. Dr. White saw defendant at the jail on four more occasions between January 17 and April 18, 1980. Dr. White discussed each visit with Helfer following her interview with defendant.

Although Dr. White did not prepare a written report until one was requested by the probation department on May 19, 1980, she had formulated a professional opinion by the end of January that defendant was mentally incapable of harboring malice, premeditating or deliberating at the time of the killing. This conclusion was included in her written report, but Dr. White had communicated her opinion to Helfer as early as the middle of February. Dr. White understood that Helfer would be seeking to prove that the killing was no more than voluntary manslaughter on either of two theories--heat of passion or diminished capacity. She stated positively that she had never advised Helfer that it would be in defendant's best interest to plead guilty to second degree murder.

On May 5 defendant, who had been freed on bail, saw Dr. White in her Stockton office. The doctor found defendant to be much more upset and distressed than she had been at their last visit in April. At the hearing on defendant's motion to withdraw her guilty plea, Dr. White testified unequivocally that, in her medical opinion, defendant could not have made a cognitive, intelligent decision to plead guilty and make the attendant waiver of constitutional rights three days after their interview. She expressed the belief that defendant's mental condition could only have worsened between May 5, the date of the interview, and May 8, the date of the plea.

After defendant entered her guilty plea on May 8, she surrendered herself to the jail, and the jail physician who had treated her during her earlier time of incarceration described her as a woman who was "quite anxious" and "deeply depressed."

Defendant testified that, although she saw Helfer three or four times between the time of her arrest and the taking of her plea, she never met with Helfer and Dr. White at the same time. She also testified that Helfer never told her of the doctor's conclusions concerning defendant's lack of capacity to form and hold certain mental states. Defendant did not discuss any change of plea with Dr. White on May 5, the date of her last visit preceding entry of the plea, as she had no intention at that time of changing her plea.

The first time defendant saw Dr. White's report containing the conclusions about defendant's mental condition at the time of the killing was after defendant had been sentenced and confined in the California Institution for Women. The counselor at that facility had reviewed defendant's records and asked her why she had pleaded guilty to second degree murder.

At the hearing on the motion to vacate and set aside defendant's guilty plea and the judgment based thereon, the defense and the prosecution entered into a stipulation that if, at the time defendant entered her guilty plea, she were taking the amount of medication prescribed, the medication would not have affected her thinking. Defense counsel specifically excluded from this stipulation any consideration of whether Elavil, one of the medications prescribed for defendant, had an adverse effect on her or whether she was taking more medication than had been prescribed.

Deputy Public Defender Helfer testified at the hearing on the motion and contradicted much of defendant's testimony concerning the conversations between them. Although extensively examined and cross-examined, he never did testify that he reviewed with defendant Dr. White's conclusions following her various examinations of defendant or the testimony Dr. White was prepared to give.

A careful review of the record reveals that the trial court failed to develop on the record a factual basis for the guilty plea. The only expression of concern by the trial court over the existence of a factual basis was the court's inquiry of defense counsel as to whether a factual basis did exist, and that occurred after defendant had actually entered her guilty plea.

DISCUSSION

Defendant's primary contention on appeal is that the trial court abused its discretion when it denied her motion to...