People v. Leever

• Citation: 173 Cal.App.3d 853,219 Cal.Rptr. 581
• Court: California Court of Appeals
• Decision Date: 29 October 1985
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph LEEVER, Defendant and Appellant. In re Joseph LEEVER, on Habeas Corpus. A022498, A028078.

Page 581

219 Cal.Rptr. 581

173 Cal.App.3d 853

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph LEEVER, Defendant and Appellant.

In re Joseph LEEVER, on Habeas Corpus.

A022498, A028078.

Court of Appeal, First District, Division 2, California.

Oct. 29, 1985.

Certified for Partial Publication. ^*

John P. Ward, San Francisco, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Eugene Kaster, Mark S. Howell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SMITH, Associate Justice.

Charged by information with the June 25, 1982, robbery of a teller at Bank of America's 420 Post Street office in San Francisco (Pen.Code, § 211), ¹ defendant Joseph Leever pled not guilty and not guilty by reason of insanity, and denied allegations of two prior felony convictions ( §§ 667, 667.5, subd. (b)). Leever's motion to represent himself was granted, and jury trial proceeded in three phases--guilt, sanity and priors. The jury returned a verdict of guilty on the robbery charge, found that Leever was sane at the time of the robbery and found that he had suffered the priors (as alleged pursuant to an amendment to the information allowed at trial). Leever was sentenced to the three-year middle term for robbery ( s213) plus two consecutive terms of five years each for the two priors( §§ 667, subd. (a), 1192.7, subd. (c)), for a total consecutive term of 13 years, less credits. Imposition of sentence for two additional one-year enhancements for the priors ( s667.5, subd. (b)) was ordered stayed ( s654). Timely notice of appeal from the April 19, 1983, judgment was filed on May 3. Filed concurrently with Leever's opening brief on appeal was a petition for writ of habeas corpus, which we ordered considered along with the appeal.

BACKGROUND

The following facts drawn from evidence at the guilt phase of trial are set out here as relevant to several issues raised. Further relevant facts are presented with the discussion of each issue.

Leever, a federal probationer at the time of the incident, placed a call to his probation officer, Eugene Bushe, on June 21, 1982, reporting that he had tried unsuccessfully the night before to take his life by ingesting Sominex tablets and some alcohol. It had only made him sick to his stomach. He said that he would complete the attempt as soon as he found a feasible way. Bushe recalled a conversation two months earlier in which Leever had spoken of suicide. Leever sounded logical and calm over the phone but "worn out." He was despondent over being unable to return to his roommates after having stolen some money from them. He had no place else to go, had no means to support himself and was feeling ashamed of his homosexuality. He felt himself a burden to society and saw suicide as the only alternative left.

After the conversation, Bushe traced a telephone number that Leever had left earlier in the day to a movie theater, went there and discovered Leever inside. Bushe called for the local police, explaining the situation. Arriving officers detained Leever and had him admitted to San Francisco General Hospital's psychiatric ward for 72 hours' treatment and evaluation as a "5150" (Welf. & Inst.Code, § 5150)--a person dangerous to himself as the result of a mental disorder. He was released at about 9:30 a.m. on June 25, despite his application for an extension of services.

At about 11:30 the same morning as his release, Leever approached a teller window at 420 Post Street and handed teller Arturo Medrano a withdrawal slip on which were written words to the effect: "I'm desperate. Give me twenties, tens and fives or I am going to shoot everyone. Help." Leever's signature was on the bottom. Leever acted as though he had a concealed weapon. To Medrano, Leever looked nervous and anxious, sickly or drugged, and wore an expression that seemed to say, "Come on. Give it to me. I don't want to do anything." He was pale, and his eyes were sunken and bloodshot, as if he had not slept in days. He appeared disguised and About two days later, at 4 a.m. on June 27, Leever walked into a San Francisco police station, said he wanted to turn himself in and ultimately confessed to the robbery. He was placed under arrest, at which point an apparent draft of the demand note used in the robbery was found in his wallet.

                spoke in whispers which Medrano could not make out except for the repeated command, "Hurry up."   Medrano placed money on the counter.  Leever fanned the money out, took $140 in twenties, leaving a rubber-band-bound package of bait money, and walked away.  Medrano pressed his alarm button and reported the incident
                

Defense witness Dr. David R. Kessler, a psychiatrist, conducted examinations of Leever and reviewed various hospital, police and other records to reach an opinion as to Leever's mental condition. He concluded that Leever's behavior at the time of the incident "was driven by psychological forces and did not represent the usual criminal motivation associated with bank robbery." Leever was depressed and suicidal at the time and "was looking for a means to carry out some suicidal behavior." "[T]he bank robbery was carried out with the intent of following through on the suicidal behavior." Dr. Kessler found that Leever suffered from a mental disorder known as depressive neurosis and from a passive-aggressive personality disorder. In his opinion, Leever was aware at the time of the incident that he was stealing money from the bank and that he was committing a criminal act. A person suffering from the mental disorders that he diagnosed in Leever would usually be able to form the intent to commit a theft. Leever may have lacked the substantial capacity to conform his conduct to the requirements of the law, but he knew right from wrong. Neither of the disorders manifest in Leever would prevent one from knowing the nature and quality of his act.

APPEAL

I

Three contentions relate to the following procedural facts. Public defender Michael N. Burt was Leever's appointed counsel beginning in August 1982, for the preliminary examination in municipal court, and ending on January 5, 1983, when Judge Edward Stern of the San Francisco Superior Court heard and granted Leever's motion to proceed in propria persona (hereafter Faretta motion [Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562] ). Simultaneously denied, with prejudice, was a previously filed motion by which Leever had sought to proceed in propria persona as to part but not all of the trial. On February 22, the first day of jury trial, Leever tendered a written motion for advisory or "standby" counsel to assist at trial. The motion was denied, first by Judge Stern and, later that day, by trial Judge Robert L. Dossee. After the jury returned its verdict of guilty in the first phase of trial, Leever moved to be relieved of his in propria persona status and to have counsel reappointed. That motion, too, was denied, after a hearing at which original appointed counsel, Mr. Burt, advised the court that several weeks preparation would be required to ready himself for trial in the case. Leever continued to represent himself throughout the remaining proceedings.

Leever raises his first contention by way of both the appeal and the petition for writ of habeas corpus. Attached to the writ petition is a five-page letter to Judge Stern dated January 25, 1983. That letter, from a certified law clerk at the Prisoner Services Division of the San Francisco Sheriff's Office (hereafter PSD), urges, based on a report by a Dr. Nievod, that Judge Stern reconsider his prior (January 5) grant of Leever's Faretta motion and hold a hearing on the issue of Leever's "competency to waive counsel." Leever concedes in this court that Judge Stern correctly granted the Faretta motion based on the information then before the court, but he argues that the subsequently submitted letter "provided new information of sufficient weight to require further inquiry We must conclude that the letter, despite its summary of Dr. Nievod's report, did not provide substantial evidence of incompetency. While the report of a single qualified professional concluding that a defendant is incompetent will furnish substantial evidence, even though contradicted by other reports and evidence (People v. Pennington (1967) 66 Cal.2d 508, 519, 58 Cal.Rptr. 374, 426 P.2d 942; People v. Stankewitz, supra, 32 Cal.3d 80, 92, 184 Cal.Rptr. 611, 648 P.2d 578), a report which merely contains evaluations without specific reference to the defendant's competency will not. (People v. Laudermilk, supra, 67 Cal.2d 272, 285, 61 Cal.Rptr. 644, 431 P.2d 228; People v. Jensen (1954) 43 Cal.2d 572, 579, 275 P.2d 25.) "The expert must state with particularity that in his professional opinion the accused is ... incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel." (People v. Burney (1981) 115 Cal.App.3d 497, 503, 171 Cal.Rptr. 329 [competency to stand trial]; People v. Pennington, supra, 66 Cal.2d at p. 519, 58 Cal.Rptr. 374, 426 P.2d 942.)

                into [his] ongoing competence to waive counsel."   He relies on case law holding that once a defendant comes forward with "substantial evidence" of his incompetency to stand trial, due process requires that a full competency hearing be held.  (People v. Stankewitz (1982) 32 Cal.3d 80, 92, 184 Cal.Rptr. 611, 648 P.2d 578;  People v. Laudermilk (1967) 67 Cal.2d 272, 283, 61 Cal.Rptr. 644, 431 P.2d 228, cert. den. (1968) 393 U.S. 861, 89 S.Ct. 139, 21 L.Ed.2d 128;  see § 1368.)   Although the ultimate issues of competency to stand trial and competency to waive the constitutional right to counsel (i.e., whether the waiver was knowing and intelligent) are not identical (Westbrook v. Arizona (1966) 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429;  People v. Clark (1985) 168 Cal.App.3d 91, 94-95, 213 Cal.Rptr.

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