People v. Johnson

• Decision Date: 23 February 1978
• Docket Number: Cr. 15573
• Citation: 143 Cal.Rptr. 852,77 Cal.App.3d 866
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Wesley JOHNSON, Defendant and Appellant.

Page 852

143 Cal.Rptr. 852

77 Cal.App.3d 866

PEOPLE of the State of California, Plaintiff and Respondent, v. John Wesley JOHNSON, Defendant and Appellant.

Cr. 15573.

Court of Appeal, First District, Division 3, California.

Feb. 23, 1978.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman, Carol Jean Ryan, Deputy State Public Defenders, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, David J. Schneller, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

FEINBERG, Associate Justice.

Appellant was charged with murder (Pen.Code, § 187) and convicted by a jury of voluntary manslaughter (Pen.Code, § 192, subd. (1). We have concluded, that the conviction should stand but that the portion of the judgment declaring appellant suffered a prior conviction must be reversed for failure to fully advise appellant of his rights in regard to admission of a prior felony conviction.

Appellant was married to the victim, Gertie McFall Johnson, whose body was found buried in the basement of the house where the couple lived with their two-year-old son. Appellant had returned to the residence on October 9, 1975, after his release from county jail. Gertie was last seen on October 20, 1975, and on October 25, 1975, her grave was discovered by her brothers, Curtis and Sherman McFall.

Was appellant properly found competent to stand trial?

On December 18, 1975, the public defender, Mr. Meyer, requested the court to suspend proceedings under Penal Code section 1368 to determine if appellant was competent to stand trial because appellant refused to see him or talk to him. ¹ The court ordered criminal proceedings suspended, appointed Doctors Joseph Davis and George Ponomareff to examine appellant, and continued the matter to January 2 for receipt of the doctors' reports. Appellant protested, stating that he would not see any doctors or work with his attorney and that if the attorney were dismissed from the case, he thought he could handle the case himself. The court replied that even if all that were demanded was that appellant represent himself, he would still have to determine competency of the appellant to represent himself.

Dr. Davis reported by letter that appellant had refused to talk to him and, therefore, he was unable to give an informed opinion as to whether appellant was insane pursuant to section 1368. He concluded by observing: "However, if he reacts to his counsel in the same manner that he reacted to me it can be anticipated that he will not be able to cooperate in the preparation of his defense." Dr. Ponomareff reported much the same thing, although he also noted that appellant's Air Force record showed a schizophrenic psychosis three years ago.

On January 2, 1976, the court stated that his initial feeling was that appellant's reaction was nothing more than antagonism toward counsel but wasn't sure after reading Dr. Ponomareff's letter. He then stated: "The Court finds the Defendant incompetent to proceed with further criminal proceedings. He is ordered to be committed to Atascadero Hospital for treatment." Appellant then asked why he was going to Atascadero and the court answered: "I don't think that you are in any amenable condition to proceed with criminal proceedings." The appellant stated that he didn't want the attorney to represent him and that the Air Force evaluations mentioned by Dr. Ponomareff had no bearing on the case. Appellant repeated his reason for not wanting the attorney, and the court stated: "I will vacate my previous order and permit the Defendant to institute proceedings pursuant to Section 1368. Put this matter over for two or three days in order to investigate it further." By January 21, 1976, appellant had new counsel and had indicated his willingness to cooperate with counsel and proceed to trial. The court found appellant competent and reinstated criminal proceedings.

Appellant argues that once having orally pronounced a finding of incompetence, the court was required to commit him until such time as the superintendent of the medical facility to which he was committed certified that he had regained competence. (See Pen.Code, § 1370.) Respondent likens this case, however, to one in which a court has orally sentenced a defendant. In such event, a court may vacate its oral sentence to correct judicial error if the order has not been entered in the court minutes nor defendant restrained under it. (People v. Thomas (1959) 52 Cal.2d 521, 529-536, 342 P.2d 889; People v. Hartsell (1973) 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627.)

Almost immediately upon announcing its finding of incompetency, the court realized further investigation was necessary. To the extent that the court concluded evidence of incompetency at that point was insufficient, it was correct. A finding of incompetency solely on evidence of a defendant's refusal to cooperate would be unwarranted. (See People v. Huffman (1977) 71 Cal.App.3d 63, 70, 139 Cal.Rptr. 264.) Although Dr. Ponomareff considered that further investigation was indicated because of a past history of psychosis, the only evidence of present incompetence was an unwillingness to cooperate and appellant explained this unwillingness as due to his lack of confidence in the public defender.

The court was correct in concluding on January 2 that there was insufficient evidence of incompetency and that he was not bound by his pronouncement to the contrary only moments before. Further developments then dispelled the doubt about incompetence that had originally prompted the court to institute proceedings under Penal Code section 1368 since appellant was willing to cooperate with his new attorney. People v. Renteria (1960) 183 Cal.App.2d 548, 6 Cal.Rptr. 640, relied upon by appellant, is inapposite. In Renteria, the court expressed doubt as to defendant's present mental competence, orally ordered a hearing and without dispelling that doubt, vacated that order without determining competency. Here, to the contrary, there was evidence taken and a finding of competency supported by the evidence. (See People v. Hays (1976) 54

Cal.App.3d 755, 759-760, 126 Cal.Rptr. 770.) Was appellant denied effective assistance of counsel because his trial attorney conceded to the admission of inadmissible evidence on the victim's fear of appellant?

Before trial began, the court asked counsel for any further argument they wished to advance on the admissibility of evidence of threats. Defense counsel answered that all they were asking was that statements as to past events which caused the victim's state of mind be excluded and referred to the case of People v. Hamilton (1961) 55 Cal.2d 881, 13 Cal.Rptr. 649, 362 P.2d 473. The prosecutor stated that evidence of the victim's state of mind shortly before the killing would be relevant and that hearsay statements of the state of mind would be admissible under Evidence Code section 1250. Thereafter, the prosecutor questioned various witnesses, without objection, as to whether the victim had expressed a fear of appellant.

The hearsay evidence of the victim's fear was inadmissible under Evidence Code section 1250. This section permits hearsay statements of a declarant's state of mind only when the "state of mind (1) is itself an issue in the case, or (2) is relevant to prove or explain acts or conduct of the declarant." (People v. Ireland (1969) 70 Cal.2d 522, 529, 75 Cal.Rptr. 188, 191, 450 P.2d 580, 583.) Gertie's state of mind was not itself an issue of the case nor did her fear explain any of Gertie's acts or conduct. Respondent suggests that the fact Gertie feared appellant would tend to prove that she would not have provoked appellant to act in the heat of passion. Appellant did not contend that he had acted in the heat of passion. Nor did the prosecutor argue that her fear negated conviction of the lesser charge. He argued only that it showed that appellant killed Gertie. As the evidence was inadmissible hearsay, respondent's suggestion that the evidence was relevant to show the identity of the assailant under the general definition of relevancy of Evidence Code section 210 is without merit.

It is clear that no tactical consideration prompted defense counsel's concession of admissibility but, rather, a misreading of People v. Hamilton, supra, upon which counsel relied to argue that past conduct of appellant which produced the fear would be inadmissible. While counsel's position was mistaken, the mistake did not deny appellant the effective assistance of counsel to which he is entitled under the United States Constitution. The effective counsel required by due process "is not errorless counsel; rather, it is counsel 'reasonably likely to render, and rendering reasonably effective assistance.' (Citations)." (In re Saunders (1970) 2 Cal.3d 1033, 1041, 88 Cal.Rptr. 633, 638, 472 P.2d 921, 926.) Cases involving the failure to object to inadmissible evidence have required of the appellate courts an assessment of the role the evidence had in convicting the defendant. Where it has played a crucial role, reversal has followed. (See, e. g., People v. Dorsey (1975) 46 Cal.App.3d 706, 120 Cal.Rptr. 508, evidence of defendant's wife, inadmissible as a confidential communication between husband and wife, was the only testimony other than accomplice testimony; People v. Williams (1971) 22 Cal.App.3d 34, 99 Cal.Rptr. 103, inadmissible hearsay supplied a motive for a seemingly random killing, the defense for which was unconsciousness due to a psychomotor epileptic attack; People v. Coffman (1969) 2 Cal.App.3d 681, 691, 82 Cal.Rptr. 782, evidence generated by an illegal search transformed a reasonable probability of conviction into virtual certainty.)

Here, in contrast, the fact that Gertie was afraid of appellant was only one of many...