People v. Sundberg

• Decision Date: 26 October 1981
• Docket Number: Cr. 11755
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Neal Rodney SUNDBERG, Defendant and Appellant.

Page 734

177 Cal.Rptr. 734

124 Cal.App.3d 944

The PEOPLE, Plaintiff and Respondent, v. Neal Rodney SUNDBERG, Defendant and Appellant.

Cr. 11755.

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

Oct. 26, 1981.

As Modified Nov. 6, 1981.

Quin A. Denvir, State Public Defender, Barbara A. Smith, Deputy State Public Defender, and Carmela Simoncini, Panel Atty., San Diego, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Keith Motley

and Pat Zaharopoulos, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Associate Justice.

Neal Rodney Sundberg was charged with the murder of Steve Larry Johnson (Pen.Code, § 187) and the personal use of a firearm in the commission of that murder. Sundberg noticed a pretrial motion to dismiss (Pen.Code, § 995); but before hearing of the motion, criminal proceedings were suspended for the purpose of conducting an examination as to Sundberg's present sanity, his competence to stand trial (Pen.Code, § 1368). At a jury hearing on that issue, he was found not mentally competent to stand trial and he was placed in Patton State Hospital. Some months later he was returned to the criminal court and rearraigned, where he pleaded not guilty and not guilty by reason of insanity. After a jury trial of the guilt phase, Sundberg was convicted of second degree murder with the finding he personally used a firearm. Upon further trial of the insanity issue, he was found to be sane at the time of the killing. Sundberg was sentenced to prison for 17 years to life. He appeals, contending the trial court erred in denying his motion for a further Penal Code section 1368 mental competency hearing; alternatively he asserts he was denied effective counsel by virtue of the fact the trial attorney withheld facts surrounding his diminished capacity evidence and his delusional conspiracy defense. Finally, Sundberg contends he was entitled sua sponte to a diminished capacity instruction based upon the evidence before the jury.

FACTS

Sundberg went to the Huntress Bar for the second time on the morning of May 13, 1979, shortly before the 2:00 a. m. closing time. He asked if he had time to have a beer and was told ten minutes. A few minutes after receiving the beer, the bartender asked him to turn in his beer as it was late and he had collected everyone else's. Sundberg told him to get everyone else's and then he would give him his. Bartender Joe Baumgardner grabbed Sundberg's bottle of beer and a tug of war ensued. Bar patron Steve Johnson, a 5 foot and 11 inch, 170 pound male, walked up behind Sundberg and grabbed him around the neck and pulled him away from the bar, knocking off Sundberg's glasses. Sundberg let go of the beer, causing the bartender to fall backwards against the other side of the bar. Sundberg backed towards the front of the bar with Johnson following him. Johnson then hit Sundberg in the face with his fist and Sundberg fell to the floor, knocking over another patron. At this point, Sundberg had pulled a pistol from inside his windbreaker and shot Johnson. Johnson turned sideways and started for the front door. Sundberg followed, firing a total of nine shots. The last two shots were fired outside the bar room when Johnson lay prone on the sidewalk. The two shots entered the back of Johnson's head, killing him.

Sundberg testified his glasses were pulled from his face; he could not see, his view was badly out of focus. He contends he attempted to get away from Johnson and the bartender but he had no chance since Johnson was 20 years younger; Sundberg thought Johnson was 6 foot 5 inches and weighed 250 pounds and he looked like the "Incredible Hulk." Sundberg testified he thought the bartender and Johnson were going to kill him. Since Johnson kept coming after him, he pulled his pistol and started shooting and did not stop until the ninth shot was fired. He then put his gun back into his pocket "so no one would feel threatened," returned to the bar to get his glasses. He thought it was better to get out of there and so departed.

DISCUSSION

I

Sundberg contends there was substantial and uncontradicted evidence he was incapable of assisting his attorney in the presentation of a rational defense and therefore the trial court erred in denying the defense counsel's motion for a mental competency hearing (Pen.Code, § 1368).

The following facts are relevant to this issue. The trial court was aware of Sundberg's mental history. There had been the prior adjudication of Sundberg's incompetence to stand trial in this matter. Shortly before trial commenced at a hearing scheduled on defendant's motion to exclude certain statements, the trial judge (Gilliam) discussed with both parties the various aspects of presenting the issue of diminished capacity and whether the same jury could hear and decide both the guilt or innocence issue and the not guilty by reason of insanity issue. Shortly before this hearing Sundberg had been examined by Dr. Barron and Dr. Davis, appointed by the court to examine him by reason of his insanity plea. These doctors informed the court that Sundberg was suffering a paranoid schizophrenia and he had delusions relating to a conspiracy to kill him because of an inheritance that he should have had some 20 years ago. Nonetheless, without the question being asked, the court volunteered the conclusion that Sundberg was mentally competent to stand trial. Two days later (Feb . 4) Sundberg was examined by Dr. Kripke, employed by the defendant. Kripke made the same findings of paranoid schizophrenia, delusions of a conspiracy to be killed related to an inheritance. Kripke did not find that Sundberg was mentally incompetent to stand trial. Thus as defense counsel admitted at commencement of trial, all five psychiatrists who had examined Sundberg found that despite delusions he was then mentally competent to stand trial.

The matter of the diminished capacity defense was discussed at the pretrial February 4 and the February 14 meetings with the court. Sundberg's counsel (Gusky) expressed his views that he did not want to raise diminished capacity "because we feel if we do go with the diminished capacity, the tendency would be that the jury would go towards a compromise." "And so we want to take our best shot possible on the justifiable homicide and then decide after we see the flavor of the evidence at that point whether or not to deviate to the additional defense of a diminished capacity." It was with this articulated counsel choice of strategy that the diminished capacity issue was not raised in the guilt phase of the trial.

Five days later the jury was selected and the trial commenced. Sundberg testified in his own defense. Sundberg's testimony essentially reflected his view of a self-defense justification for the killing. Little came into evidence before the jury concerning his delusions. However, at the conclusion of redirect examination of Sundberg, he had been shown a picture of the deceased victim and he suddenly commenced to laugh. He explained to the court that the body of the decedent must have been switched by the police because the body depicted in the photograph was not the man he shot. In chambers, Judge Gilliam again made inquiry into defense counsel's intention regarding putting on evidence of Sundberg's diminished capacity. Counsel Gusky reiterated his tactical position. He was afraid the jury might ignore a possible verdict of justifiable homicide. At this hearing in chambers, Sundberg made such observations as:

"All I know is I am being framed and it was self-defense. The police are framing me."

Then he said regarding his lawyer:

"No, he never talked to me about anything, nothing, ever.

"The Court: He never talked to you about diminished capacity?

"Defendant: Huh-uh.

"The Court: You didn't tell him you wanted to go with the diminished capacity?

"Defendant: No, we never discussed anything about the trial."

Mr. Gusky said that he had discussed these matters with his client. The defendant responded "That's a lie. Probably J. Paul Getty has got to him to. I am the rightful heir to J. Paul Getty. He murdered my brother and father." At this time the deputy district attorney suggested "I think perhaps a conference between the defendant and his counsel might be appropriate." The court then questioned "Have you had any type of drug or any type of medication." Defendant said "No I haven't. My story is true. I can't prove it, though."

Then the court questioned Sundberg at length. The defendant maintained his position: he was framed; the coroner described the wrong body. Witnesses were shown the wrong body. He preserved on the subject of the conspiracy to be framed for murder plus his claim as to being the heir of J. Paul Getty. "They must have gotten to the police. Who knows who else?"

But Sundberg insisted he was sane. "... I'm sane. I have been writing from state and county hospitals that I am sane. Why would I raise that?" Defendant insisted "... I never have had any mental problems. That was all explained, if you remember, by Judge Lowe, who J. Paul Getty probably got to. I wanted to be my own lawyer and I told Judge Lowe that. He said that would be fine 'because you were your own attorney over in Judge Ward's court over in federal court so I think you can be your own attorney here, too. But just to be sure, I'll have you see the court psychiatrist to check out, to see if it would be all right if you could be your own attorney.' ... Instead of checking out to see if I could be my own attorney, they committed me to Patton Hospital, most likely on Judge Lowe's orders. I think J. Paul Getty got to Judge Lowe. That's what they did to my mother and brother too."

The court questioned: "You didn't want anything about your mental capacity to come up in this trial? The Defendant: Absolutely not, because there is nothing...