People v. Stiltner

• Decision Date: 28 April 1982
• Docket Number: Cr. 11474
• Citation: 182 Cal.Rptr. 790,132 Cal.App.3d 216
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Dewey Gilbert STILTNER, Defendant and Appellant.

Page 790

182 Cal.Rptr. 790

132 Cal.App.3d 216

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dewey Gilbert STILTNER, Defendant and Appellant.

Cr. 11474.

Court of Appeal, Third District, California.

April 28, 1982.

Carol E. Hawes, Anderson, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Nancy Sweet, Deputy Attys. Gen., for plaintiff and respondent.

REGAN, Acting Presiding Justice.

Defendant was convicted by a jury of robbery (Pen.Code, § 211) and forced oral copulation. (Pen.Code, § 288a, subd. (c).) The jury found that defendant was armed with a firearm (pistol) and used it in both offenses and, as to the crime of oral copulation, the jury found that defendant was also armed with a deadly weapon (a knife). Defendant appeals from the judgment sentencing him to 14 2/3 years in prison.

FACTS

The victim of both crimes, Mrs. G., debarked about 1 a.m. from a Greyhound bus in Oroville. The bus station was closed and she went to a nearby phone booth, phoned her husband at their home and asked him to come to get her. While waiting, she saw two men approaching who had been on the bus with her. One of them was defendant. He grasped her by the arm, placed a handgun to her side and led her to the back of the bus station where he ordered her to produce her wallet. She did so and handed him a $5 and a $10 bill. He examined the wallet, threw it down and, holding the gun to her head, ordered Mrs. G. to orally copulate him. She had commenced to do so when she heard her husband's truck pull up in front of the bus station. She informed defendant of this and he let her go. She went to her husband's truck, asked him to depart quickly and then told him what had happened. Enroute home they saw a patrol car and reported the crimes. Mrs. G. described her assailant to the patrolman and again at the police station.

About 1:35 a. m. an Oroville police officer, Douglas Nisson, who had heard a broadcast description of defendant (particularly including a shiny earring in his left ear), saw defendant and another man walking on the street. Nisson pat searched defendant for weapons and found a loaded blue steel .22 magnum revolver in his waistband under his jacket, and a fishing-style knife protruding between the coat tails of his jacket in one of his back pockets. Defendant said "You found it. I guess you got me." Mrs. G. was taken to the area where defendant had been searched and detained. She made an immediate, positive identification of defendant.

Defendant was arrested and placed in the patrol car. On the way to the police department, defendant said, "The other guy's just a wino. It's my gun. I'll take the rap for the whole thing."

Defendant was searched more thoroughly at the police station and in his shirt pocket was found $26--two $5 bills, one $10 bill and six $1 bills. Defendant said, "That's more money than she had." Additionally, the officers removed a metal earring from defendant's left ear.

While defendant was being booked, he stated several times that what they had taken from his person was "more money than she was robbed of ... [t]hat ought to tell you something."

On direct examination at trial, defendant admitted having robbed Mrs. G. and having forced her to orally copulate him. However, on cross-examination, he denied the forcible oral copulation and said that they never got to that because the victim's husband arrived. He said he had been drinking alcohol to excess prior to the acts.

Defendant admitted on cross-examination to having been convicted in 1979 of a felony (stealing or "misappropriating" a car) and to having served time in prison for that.

Discussion

I

Defendant contends the trial court erred in not "initiating" proceedings to determine defendant's competence to stand trial. (Pen.Code, §§ 1367 and 1368.) In essence those sections provide that if during the pendency of an action a doubt arises in the mind of the judge as to the mental competence of the defendant (defined as a mental disorder or developmental disability to the extent the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner), the judge shall state that doubt in the record, inform counsel and allow or require the question to be determined in a hearing before any further criminal proceedings are taken.

Defendant cites the following factors as justification for competency proceedings: (1) his expressed concern over "scoliosis" ¹ (which he called "softening of the bones"); (2) his concern over the absence of a gag order to protect the reputation of the victim; (3) his claim that he had been unable to communicate with his attorney; (4) his conduct in taking the stand and then confessing; and (5) what he characterizes as his "incoherent responses to the Judge's questions" and his "irrelevant comments ...."

We fail to find these factors or any other matters contained in the record as substantial evidence of mental incompetency requiring a hearing on his competence as a matter of law.

Section 1368 imposes upon the trial judge the duty, on his own motion, to inquire into the mental capacity of a defendant to stand trial whenever evidence presented during trial or prior to sentencing raises a bona fide doubt in this respect. (In re Davis (1973) 8 Cal.3d 798, 808, 106 Cal.Rptr. 178, 505 P.2d 1018; People v. Coogler (1969) 71 Cal.2d 153, 168, fn. 7, 77 Cal.Rptr. 790, 454 P.2d 686; People v. Pennington (1967) 66 Cal.2d 508, 520, 58 Cal.Rptr. 374, 426 P.2d 942.) The doubt which triggers the obligation of the trial judge to order a hearing is not a subjective one but rather a doubt determined objectively from the record. (People v. Humphrey (1975) 45 Cal.App.3d 32, 36, 119 Cal.Rptr. 74.) Evidence which raises merely a suspicion of lack of present sanity but which does not purport to state facts of a present lack of ability through mental illness to participate rationally in a trial is held not to be substantial evidence of lack of present sanity. (People v. Laudermilk (1967) 67 Cal.2d 272, 282, 61 Cal.Rptr. 644, 431 P.2d 228; People v. Humphrey, supra, 45 Cal.App.3d at p. 36, 119 Cal.Rptr. 74.)

A defendant is entitled to a section 1368 hearing as a matter of law only if there is presented substantial evidence showing his mental incompetency. (Pate v. Robinson (1966) 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; People v. Pennington, supra, 66 Cal.2d at p. 518, 58 Cal.Rptr. 374, 426 P.2d 942; People v. Zatko (1978) 80 Cal.App.3d 534, 547, 145 Cal.Rptr. 643.) The substantial evidence test is satisfied if a psychiatrist or psychologist who has had a sufficient opportunity to examine the accused, states that in his professional opinion the accused is incapable due to mental illness of understanding the purpose or nature of the proceedings against him or is incapable of assisting in his defense or cooperating with his counsel. (People v. Beivelman (1968) 70 Cal.2d 60, 71, 73 Cal.Rptr. 521, 447 P.2d 913; People v. Laudermilk, supra, 67 Cal.2d at pp. 287-288, 61 Cal.Rptr. 644, 431 P.2d 228; People v. Pennington, supra, 66 Cal.2d at p. 520, 58 Cal.Rptr. 374, 426 P.2d 942; People v. Corona (1978) 80 Cal.App.3d 684, 727, 145 Cal.Rptr. 894.) There was no medical evidence here on this point.

In the case of the presentation of substantial evidence, the trial court has no discretion to exercise insofar as the decision to hold a hearing is concerned. (People v. Zatko, supra, 80 Cal.App.3d at p. 547, 145 Cal.Rptr. 643.) If, on the other hand, the evidence of present incompetency is less than substantial, whether or not to order a hearing is within the discretion of the trial judge. (People v. Beivelman, supra, 70 Cal.2d at p. 71, 73 Cal.Rptr. 521, 447 P.2d 913; People v. Zatko, supra, 80 Cal.App.3d at p. 547, 145 Cal.Rptr. 643.) "Only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge's determination be disturbed on appeal." (People v. Beivelman, supra, 70 Cal.2d at p. 71, 73 Cal.Rptr. 521, 447 P.2d 913.) We find no abuse of discretion.

II

We are not persuaded by defendant's contention that he was deprived of effective assistance of counsel at trial, in that his counsel was incompetent in the following respects: (a) failure to develop a defense of diminished capacity due to mental disease or defect or insanity; (b) failure to object to impeachment of defendant with a prior felony conviction or to obtain defendant's criminal record before placing him on the stand; and (c) failure to respond effectively or adequately when defendant confessed on the witness stand. The record does not enable defendant to meet his burden of establishing these claims on appeal. (See People v. Camden (1976) 16 Cal.3d 808, 816, 129 Cal.Rptr. 438, 549 P.2d 1110.) Defendant is required to show on appeal that his trial counsel failed to act in a manner to be expected of a reasonably competent attorney, acting as a diligent advocate, and that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) Once defendant has met that burden, the appellate court must look to see if the record contains any explanation for the challenged aspect of the representation and, if it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent. For example, where the record shows counsel's omissions resulted from an informed tactical choice within the range of competence, counsel has not been shown to have been ineffective. (Ibid.)

If, on the other hand, the record "does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made...