People v. Ruiz

• Decision Date: 30 September 1970
• Docket Number: Cr. 3910
• Citation: 90 Cal.Rptr. 110,11 Cal.App.3d 852
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Elias GONZALES RUIZ, Defendant and Appellant.

Page 110

90 Cal.Rptr. 110

11 Cal.App.3d 852

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elias GONZALES RUIZ, Defendant and Appellant.

Cr. 3910.

Court of Appeal, Fourth District, Division 1, California.

Sept. 30, 1970.

[11 Cal.App.3d 855] Garza & Kassel and Donald W. Jordan, Jr., San Bernardino, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lawrence P. Scherb, II, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Elias Gonzales Ruiz (defendant) appeals from a judgment imposing sentence for armed robbery (Pen.Code, § 211) and from an order denying his motion for a new trial.

The order denying the motion for new trial being non-appealable, the purported appeal therefrom is dismissed.

PROCEDURAL BACKGROUND

Defendant was first charged by complaint in the justice's court and at his arraignment therein was certified to the superior court upon a waiver of preliminary hearing. In the superior court proceedings were had to determine the question of his then sanity. At the hearing for that purpose Dr. Otto L. Gericke, medical superintendent of Patton State Hospital, and Dr. Ethel A. Chapman, assistant superintendent of psychiatric services at the same hospital, gave their respective opinions that defendant was then suffering from retrograde amnesia so as to be unable to cooperate with counsel in his own defense and on that basis was ruled insane within the meaning of Penal Code, section 1368 and committed to Patton State Hospital where he remained until March 5, 1969, when he was returned to the superior court on the certificate of Dr. Gericke that he was sane.

Thereafter the first proceeding was dismissed, a new complaint filed in the justice's court, a preliminary hearing held, resulting in defendant's being bound over for trial, and an arraignment had at which defendant pleaded not guilty by reason of insanity.

Defendant's contentions on appeal may be stated thus: (1) the entry of a single plea of not guilty by reason of insanity entailed the loss of the right of a trial by jury of a possible defense of diminished capacity and required that defendant be first informed of his right to such trial by jury of a possible defense and of the consequences of failing to plead not guilty with regard to such possible defense of diminished capacity; (2) it was error to fail to instruct the jury under Penal Code, section 1127b; (3) trial counsel's failure to assert the defense of diminished capacity which defendant lost as a result of pleading only not guilty by reason of insanity and trial counsel's stipulating the jury need not be instructed under section 1127b demonstrate the incompetence of trial counsel which resulted in a denial to defendant of his Sixth Amendment right to be represented by counsel; and (4) the evidence showed as a matter of law that defendant was insane.

Our discussion of the contentions does not follow the same order as our statement of them.

SUFFICIENCY OF THE EVIDENCE AS TO SANITY

Defendant presented the testimony of Drs. Gericke and Chapman, each of whom testified to an opinion defendant was insane at the time of the commission of the robbery. There was no opinion evidence to the contrary and no other testimony on behalf of defendant.

We discuss under another heading the bases for the opinions of the psychiatrists. They were not on the ground defendant suffered from retrograde amnesia as when the psychiatrists gave their opinions in the hearing under Penal Code, section 1368.

As a part of the evidence bearing on the issue of sanity, the People introduced the testimony of Charles W. Kilgore (Kilgore) and Frank DeMoney (DeMoney) as to the circumstances of the robbery.

On April 28, 1968, at 2:00 or 2:30 p.m., defendant entered the Ace Liquor Store in El Centro, displayed a .22 caliber revolver, and said, 'This is a holdup.' Kilgore, owner of the business, was working at his desk near the front of the store, and his clerk (DeMoney) was standing behind the counter at the cash register.

Kilgore reached into a desk drawer where he kept a pistol and in the process pushed an alarm button. To Kilgore defendant acted 'as normally as any other person in a holdup,' although he was more nervous than a few minutes before when he had entered, made a purchase of cigarettes and left, returning later with the gun. Defendant approached Kilgore, ordered him to stand, put the point of the gun at his back and made him walk to the cash register. Defendant told DeMoney to put the cash in a paper bag and after he had the money defendant picked up a .45 caliber pistol lying under the register. In an attempt to stall until the police arrived, Kilgore told defendant not to get emotional, that the store was insured. Defendant said that didn't matter since he was going to kill Kilgore anyway.

Defendant then ordered Kilgore and DeMoney to walk down an aisle toward the rear of the store. At that point the police arrived. Defendant told the police not to come closer or he would shoot Kilgore. The police left the store and defendant made the two men enter the restroom at the rear of the store and shut the door. Defendant then told Kilgore to let him into the restroom or he would kill him. Kilgore held the door closed while defendant tried several times to push it open with his shoulder. The next time defendant pushed the door, Kilgore released it and, as defendant entered off balance, Kilgore grabbed the gun and the two men went down to the floor. During the fight Kilgore took the gun from defendant and DeMoney hit defendant on the head several times with a small propane tank. The police then took defendant into custody.

DeMoney recognized the robber as a man who had been in the store three times the night before, twice to buy beer, the third time, when he was accompanied by a little boy, to buy .22 caliber cartridges.

The prosecution also presented the testimony of Dr. Marvin Royce, a surgeon, who testified he first observed defendant in the hospital on April 28 or 29, when defendant knew who he was, where he was and his approximate position in time; at that time Royce saw a depressed skull fracture about an inch in diameter in the left posterior parietal region which is just in front of and above the ear, which he again observed on April 30 during surgery, when the fragments of bone pointing toward the brain were removed and Royce saw the membrane covering the brain was intact and there was no damage to the brain itself; after the operation Dr. Royce could find no evidence of a memory defect and thought defendant was aware of the injuries he had sustained.

Defendant has contended on appeal that evidence as to the circumstances of the crime should not have been admitted since he did not deny the robbery, and that trial counsel should have objected to such evidence.

Obviously those circumstances were relevant to the question of defendant's mental state at the time. Defendant's psychiatric witnesses examined the police reports in obtaining material upon which to form an opinion as to defendant's sanity.

In discussing a defendant's capacity to form a specific intent, the Supreme Court stated in People v. Ford, 60 Cal.2d 772, 763, 36 Cal.Rptr. 620, 634, 388 P.2d 892, 906;

'(T)estimony as to the circumstances of the robbery, believed by the jury, permits of no other interpretation than that defendant entertained a specific intent to steal when he demanded Roope's money at gunpoint. (People v. Stone (1963) supra, 213 Cal.App.2d 260, 264(2), 28 Cal.Rptr. 522, and cases there cited.)'

Although the psychiatric testimony was uncontradicted by any other psychiatrist, as in People v. MacPherson, 2 Cal.3d 109, 114, 84 Cal.Rptr. 129, 465 P.2d 17; People v. Ford, 65 Cal.2d 41, 55, 52 Cal.Rptr. 228, 416 P.2d 132; People v. Wolff, 61 Cal.2d 795, 804, 40 Cal.Rptr. 271, 394 P.2d 959; In re Dennis, 51 Cal.2d 666, 674, 335 P.2d 657, the jury might properly have disregarded it under proper instruction by the court. (Pen.Code, § 1127b; People v. Coogler, 71 A.C. 165, 77 Cal.Rptr. 790, 454 P.2d 686.)

That is true particularly because of the disparity of the views expressed by both psychiatrists concerning defendant's mental defect at the hearing under Penal Code, section 1368 and at the criminal trial; and because defendant had been certified as sane for the purpose of trial as having been cured of a mental defect (retrograde amnesia) quite different from the psychosis the doctors thought he suffered from at the time of the robbery.

THE FAILURE TO ENTER A PLEA OF NOT GUILTY

The record does not show that the trial court at the time of arraignment advised defendant of his right to plead not guilty.

When defendant was arraigned on April 29, 1969, and his plea of not guilty by reason of insanity was entered, his counsel was present. It is not incumbent upon the court to explain the effect of a plea when a defendant is represented by counsel, as was defendant. (People v. Emigh, 174 Cal.App.2d 392, 344 P.2d 851; see also People v. Martinez, 154 Cal.App.2d 233, 236--237, 316 P.2d 14; People v. Langdon, 52 Cal.2d 425, 432, 431 P.2d 303.)

We reject the suggestion that either the court or defense counsel believed a defense of diminished capacity could be urged under a plea of not guilty by reason of insanity.

It was for the defendant, after full consultation with counsel, to decide what plea to enter. ¹ In advising his client in that respect defense counsel had to consider whether it would be best for defendant to stand upon a defense of insanity alone, or to weaken the effect of such a plea by arguing also for a second best defense of diminished capacity. ²

As regards a defense of diminished mental capacity in the case at bench, we refer again to the quotation from People v. Ford, Supra, 60 Cal.2d 772, 793, 36 Cal.Rptr. 620, 388 P.2d 892, set out above.

COMPETENCE OF TRIAL COUNSEL

It was a serious error of judgment for...