People v. Putney

• Decision Date: 02 July 2012
• Docket Number: F062165
• Parties: THE PEOPLE, Plaintiff and Respondent, v. THOMAS EARL PUTNEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.THOMAS EARL PUTNEY, Defendant and Appellant.

F062165

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Dated: July 2, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. F10905950)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Don D. Penner, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

On November 29, 2010, appellant Thomas Earl Putney was charged in a criminal complaint with possession of a dirk and dagger. (Former Pen. Code, § 12020, subd. (a).)¹ The complaint further alleged three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). At his arraignment the following day, Putney pled not guilty to the charge and denied all allegations.

On the date set for the preliminary hearing, December 17, 2010, Putney withdrew his not guilty plea and waived both his right to a preliminary hearing and his constitutional rights. He entered an unconditional no contest plea to the charge and admitted his three prior strikes. After Putney signed a change of plea form, the court accepted the plea, found it was made knowingly, intelligently and voluntarily and there was a factual basis for it. Defense counsel informed the court the change of plea was against his advice.

Putney was sentenced on January 21, 2011. The trial court denied defense counsel's Romero² motion to strike two or all three of his prior strikes, and sentenced him to a term of 25 years to life. Putney filed a timely notice of appeal, but did not include a certificate of probable cause. This court subsequently granted his application for permission to seek a certificate of probable cause. Putney filed a request for a certificate with the trial court, which it granted.

On appeal, Putney contends (1) defense counsel was ineffective in failing to declare a doubt as to his competency, (2) the trial court abused its discretion in declining to grant his Romero motion, and (3) his sentence violates the prohibition against cruel and unusual punishment and the double jeopardy clause. We disagree and affirm.

FACTS

The following facts are derived from the probation officer's report. The incident occurred at Coalinga State Hospital, a secured maximum security forensic hospital that houses sexually violent predators, mentally disturbed offenders, and state prisoners with mental disorders. On November 19, 2010, hospital police officers observed four inmates engaged in suspicious behavior in the hallway. Officers heard several people yelling and a group of individuals exchanging punches with one another. One of those individuals, Putney's co-defendant, inmate Joseph Taylor, was seen holding a weapon. Taylor refused to drop the weapon when ordered to do so and continued running down the hallway chasing another inmate. Taylor approached an officer and lunged at him with the weapon, striking him in the center abdomen with what officers believed was a knife, and then continued to run down the hallway. Officers deployed pepper spray and eventually subdued Taylor, at which time he was found to be unarmed.

About 30 minutes later, another officer made contact with Putney. Although Putney initially denied having a weapon, officers searched Putney and found a homemade manufactured weapon six inches long on his person. The blade was flat, had a dark tint, and was sharpened on both ends. Putney told an officer he was just protecting his "homey," Taylor, and "I didn't use it, but would have."

According to the probation report, as a juvenile Putney had sustained petitions for arson (§ 452, subd. (b)), vehicle theft (Veh. Code, § 10851) and battery (§§ 242, 243, subd. (c)), and was committed to the California Youth Authority (CYA) in 1987. He was paroled from CYA in November 1988, and in March 1990, was discharged from CYA parole under dishonorable circumstances. One month later, he was arrested and convicted of a misdemeanor weapons charge (former § 12020, subd. (a)). This conviction was followed by a string of arrests and the following convictions: (1) possession of drug paraphernalia (Health & Saf. Code, § 11364) in July 1990; (2) fighting (§ 415) and misdemeanor weapons charge (former § 12020, subd. (a)), inAugust 1990; and (3) misdemeanor weapons charge (former § 12020, subd. (a)) in September 1990, for which he received two years probation.

Putney's three strike priors arose from offenses committed in 1990. Between June and August 1990, Putney forcibly raped and sodomized two young boys, ages four and nine. The nine-year-old boy suffered anal trauma and internal hemorrhoids as a result of Putney's forcible rape. The four-year-old, who suffered scarring on his anus, related that Putney threatened him, saying "he better not tell." In a psychological evaluation of Putney, performed by Dr. Ronald Byledbal, M.D. in February 1991, Putney was diagnosed as a pedophile. According to Dr. Byledbal, "the pedophilic oriented towards male victims has a higher recidivism and is more recalcitrant to treatment." In 1991, Putney was convicted of three counts of section 288, subdivision (a), and sentenced to 10 years in prison.

In 1992, while in prison, Putney was convicted of being a prisoner in possession of a weapon (§ 4502) and sentenced to an additional two years. In February 2003, Putney was found to be a sexually violent predator pursuant to Welfare and Institutions Code section 6600, and ordered to be confined for two years in a state hospital. From 2003 to the present offense, Putney has been under continual commitment at both Coalinga and Atascadero State Hospitals.

Putney told the probation officer that he was placed in foster care when he was nine years old after his grandmother physically abused him and he was left alone at home. Putney said his uncles sexually abused him when he was five and eight. Putney had a history of suicide attempts, beginning at age 12. He attempted suicide in 1991, and again while in prison in 1995 and 1999. Putney stated he had received different diagnoses ranging from bipolar to psychotic and schizophrenic disorders, and he had sometimes seen people and heard voices. At the time of the probation department report, Putney said he was not suicidal and was not receiving medication. In the past he had been off and on medication. He stopped taking medications three months before becausehe was getting extremely paranoid that the medication was hindering his thoughts and causing nerve damage.

When interviewed by the probation officer on December 29, 2010, Putney said he saw the fight; he did not see Taylor with a weapon and he did not give him one. Putney admitted having a knife himself and said it had been in his possession for over a year. He hid the knife in different places so he would not be caught with it. He claimed he needed a weapon for protection because he had been abused by staff, inmates and police officers over the years.

DISCUSSION

Ineffective Assistance of Counsel

Putney contends trial counsel rendered constitutionally ineffective assistance by failing to declare a doubt as to his competency and request a competency hearing. As the record contains no substantial evidence of incompetency and nothing to suggest a hearing would be favorable, his claim fails.

In order to successfully claim ineffective assistance of counsel, Putney must prove two components: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.)

Putney cannot show deficient performance because there was insufficient evidence of incompetency to trigger counsel's obligation to declare a doubt. Indeed, "If an attorney has doubts about his client's competence but those doubts are not supported by medical reports or substantial evidence, he does not render ineffective assistance by forgoing an evidentiary hearing." (People v. Garcia (2008) 159 Cal.App.4th 163, 172(Garcia), citing People v. Hill (1967) 67 Cal.2d 105.) "Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances." (People v. Freeman (1994) 8 Cal.4th 450, 509; see also People v. Weaver (2001) 26 Cal.4th 876, 931; People v. Frye (1998) 18 Cal.4th 894, 985, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)

Putney asserts there was ample evidence of mental illness and questionable competence that required defense counsel to seek the advice of an expert to determine whether he was competent. But there is nothing on this record to suggest that Putney's competence was questionable. To establish incompetence, "[t]he evidence must indicate that defendant is incapable of comprehending the charges against him and of...