People v. Stewart

• Decision Date: 29 January 1979
• Docket Number: Cr. 3261
• Citation: 153 Cal.Rptr. 242,89 Cal.App.3d 992
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Orval Christopher STEWART, Defendant and Appellant.

Page 242

153 Cal.Rptr. 242

89 Cal.App.3d 992

The PEOPLE, Plaintiff and Respondent, v. Orval Christopher STEWART, Defendant and Appellant.

Cr. 3261.

Court of Appeal, Fifth District, California.

Jan. 29, 1979.

As Modified on Rehearing Feb. 28, 1979.

Baron L. Miller, San Francisco, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Jane Kirkland Fischer, Deputy Attys. Gen., for plaintiff and respondent.

OPINION ON REHEARING

HOPPER, Associate Justice.

This is an appeal from a judgment of conviction on several Penal Code violations (Pen.Code, §§ 261, 288a and 288) ¹ after the jury rejected appellant's plea of not guilty by reason of insanity. The facts of the offense are not at issue herein and no purpose would be served by relating the sordid details.

In August 1975, appellant initially entered a plea of not guilty. Subsequently, on October 9, 1975, he withdrew that plea and entered a single plea of not guilty by reason of insanity. Appellant was informed of his rights and two psychiatrists were appointed to examine him as to his sanity. On December 29, 1975, appellant moved to enter an additional plea of not guilty. That request was withdrawn on January 9, 1976.

At the beginning of the jury trial in February of 1976 on the insanity plea, at the request of appellant's counsel, the court explained several aspects of the proceedings to the appellant. Appellant's counsel informed the court that appellant did not understand the proceedings and counsel moved for a hearing pursuant to Penal Code section 1368 to determine if appellant was mentally competent to stand trial. The court ordered that appellant be examined by a psychiatrist. That psychiatrist reported to the court that appellant showed no Appellant contends that he was entitled to a trial to determine his mental competency to stand trial on the charges; that he should have been allowed to change his plea; that at the trial to determine if he was amenable to treatment the court committed reversible error in refusing to give certain jury instructions; and that reversible error was committed in not determining the sanity issue under the tests set out in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318. We discuss each of those contentions in order.

mental abnormality and was able to cooperate and assist his trial counsel. The court denied the Penal Code section 1368 motion. After the jury found that appellant was sane, the proceedings were adjourned to determine if appellant was a mentally disordered sex offender and two doctors were appointed to examine appellant for that purpose. On April 15, 1976 (the day that jury trial commenced to determine if appellant was a mentally disordered sex offender), appellant moved, under Penal Code section 1018, to reinstate his plea of not guilty. The next day the jury found appellant to be a mentally disordered sex offender. On April 20, 1976, the jury determined that appellant could not benefit by treatment in a state hospital or other mental health facility. On May 21, 1976, after a hearing, appellant's motion to change his plea was denied.

I

THE PENAL CODE SECTION 1368 MOTION

Penal Code section 1368, subdivision (b), provides:

"(b) If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court Shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court." (Emphasis added.)

A literal reading of Penal Code section 1368, subdivision (b), supports the appellant's position that if counsel informs the court of his belief in the possible incompetence of his client, then the court shall order a hearing. Nevertheless, the decision of the Court of Appeal for the First District in People v. Hays (1976) 54 Cal.App.3d 755, 760, 126 Cal.Rptr. 770, in interpreting that section, holds that a defendant is not entitled to a trial on the issue of his mental competence merely upon the statement of defense counsel, but that there must be objective substantial evidence of doubt as to the defendant's mental competence before he is entitled to a full hearing pursuant to section 1368 (see also People v. Johnson (1978) 77 Cal.App.3d 866, 143 Cal.Rptr. 852, 870-871; People v. Humphrey (1975) 45 Cal.App.3d 32, 37, 119 Cal.Rptr. 74). We concur. We believe that subdivision (b) must be read in connection with the entire statutory scheme (see Parker, California's New Scheme For the Commitment of Individuals Found Incompetent to Stand Trial (1975) 6 Pac.L.J. 484, 506; see also Hale v. Superior Court (1975) 15 Cal.3d 221, 226, 124 Cal.Rptr. 57, 539 P.2d 817).

Appellant's contention that substantial evidence exists any time counsel informs the court that his client may be incompetent is without merit. When the judge's attention is called to the issue of incompetency, or he suspects the possibility (Pen.Code, § 1368, subd. (a)), the trial judge has a duty to determine whether or not there is substantial evidence to require a full hearing. If the judge determines that a full hearing is required, he is then obligated to conduct such a proceeding. Otherwise, in the absence of an abuse of discretion, a full hearing is not required.

There was no abuse of discretion in this case. ² A full hearing under Penal Code

section 1368 was not required under the circumstances. The record in this case supports the trial court's determination that there was no substantial evidence of doubt that appellant was competent to stand trial, and in such a situation the finding of the trial court should not be disturbed (People v. Campbell (1976) 63 Cal.App.3d 599, 608, 133 Cal.Rptr. 815). Two psychiatrists who examined appellant in October of 1975 felt he was mentally competent at the time of the interview. In addition, on a number of occasions, after lengthy explanations with the judge, appellant stated he understood the proceedings. Appellant's attorney indicated that he advised appellant that "trying to deny these charges (after the attorney had reviewed the evidence) seemed like something that tactically might alienate the jury and that they were so gross that (appellant's) best chance was to try and convince the jury that he was less than sane within the legal meaning of the law."

II DENIAL OF THE MOTION TO REINSTATE THE PLEA OF NOT GUILTY

Appellant asserts that his motion to change his plea to one of not guilty should have been granted and that his counsel was ineffective in allowing him to plead as he did. When appellant withdrew his plea of not guilty and left standing only his plea of not guilty by reason of insanity, he admitted the commission of the offenses charged (Pen.Code, § 1016). Thereafter, he was subject to the general rule applicable to withdrawal of a plea of guilty. As this court said in People v. Waters (1975) 52 Cal.App.3d 323, 328, 125 Cal.Rptr. 46, 49:

"The granting or denial of an application to withdraw a guilty plea is within the discretion of the trial court after a consideration of all the factors necessary to bring about a just result; and the decision of the trial judge will not be disturbed on appeal unless an abuse thereof is clearly demonstrated. (Citations.) While the section is to be liberally construed and a plea of guilty may be withdrawn for mistake, ignorance, or inadvertence or any other factor overreaching defendant's free and clear judgment, the facts of such grounds must be established by clear and convincing evidence. (Citations.)" (See also People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636.)

To justify reversal of a conviction on the ground that the defendant has been denied the effective assistance of counsel, the defendant has the burden of establishing counsel's ineffectiveness by showing "that trial counsel acted or failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense." (People v. Pope (1979, --- Cal.3d ---, p. ---, 152 Cal.Rptr. 732, p. ---, 570 P.2d 859, p. ---); see also People v. Gainer (1977) 19 Cal.3d 835, 858, 139 Cal.Rptr. 861, 566 P.2d 997.)

It is clear that the not guilty by reason of insanity plea was a tactical decision by made by counsel after full discussion with, and agreement by, appellant. In this regard the record shows that several times, in an on-again off-again routine, appellant would change his mind, and each time that appellant stated that he did not understand, his trial counsel and the court reviewed with and explained to appellant the significance of the proceedings and the meaning and effect of the plea. During this period, three doctors and the judge concluded that appellant was mentally competent. Appellant clearly understood and agreed to his attorney's recommendation in entering the proper plea. We believe that the trial judge was correct in concluding that the appellant was told, and understood, that his plea of not guilty by reason of insanity had the same effect as a plea of guilty if he

were found sane. As to the tactics used, there was no abuse of discretion by the judge. There was no error. The record contains an explanation demonstrating that counsel was reasonably competent, acting as a conscientious, diligent advocate and that the acts and omissions resulted from an informed tactical choice within the range of reasonable competence. (See People v. Pope, supra, --- Cal.3d ---, 152 Cal.Rptr. 732, 570 P.2d 859.)

III PROPOSED JURY INSTRUCTIONS

Appellant asserts that it was reversible error at the trial to determine...