Sailer v. Gunn

• Decision Date: 16 December 1974
• Docket Number: Civ. No. 71-1332-F.
• Citation: 387 F. Supp. 1367
• Court: U.S. District Court — Central District of California
• Parties: Kenneth SAILER, Petitioner, v. Jacob B. GUNN, Warden, Respondent.

387 F. Supp. 1367

Kenneth SAILER, Petitioner, v. Jacob B. GUNN, Warden, Respondent.

Civ. No. 71-1332-F.

United States District Court, C. D. California.

December 16, 1974.

Michael Brennan, Deputy Federal Public Defender, Los Angeles, Cal., for petitioner.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Russell Iungerich, Shunji Asari, Deputy Attys. Gen., Los Angeles, Cal., for respondent.

OPINION

FERGUSON, District Judge.

Kenneth Sailer has petitioned this court for a writ of habeas corpus, based on numerous alleged violations of constitutional rights. Three of the claims raised by petitioner warrant granting the relief; it is therefore not necessary to reach the other contentions.

Facts

1. Sailer was charged on August 24, 1965, with assault with a deadly weapon with intent to commit murder. The charge was based on an alleged shooting of his wife. On October 4, 1965, he pleaded guilty to the lesser included offense of assault with a deadly weapon. The prosecutor took the plea in the following manner:

"MR. REICHMANN: Kenneth Sailer, is that your true name?

THE DEFENDANT: Yes, sir.

MR. REICHMANN: Information 308 727 charges you with a violation of Section 217 of the Penal Code, assault with a deadly weapon with intent to commit murder; however, included within that offense is another felony, that of assault with a deadly weapon in violation of Section 245 of the Penal Code.

Your lawyer has indicated to me that you desire at this time to plead guilty to the included charge of assault with a deadly weapon in violation of Section 245 of the Penal Code. Is that what you want to do?

THE DEFENDANT: Yes, sir.

MR. REICHMANN: You want to plead guilty to this included charge of assault with a deadly weapon because you feel that you are guilty of that included charge?

THE DEFENDANT: Yes.

MR. REICHMANN: Has anybody made any promises to you such as probation or leniency or anything like that in return for the plea?

THE DEFENDANT: No.

MR. REICHMANN: You understand that whatever sentence you may or may not receive rests in the hands of Judge Holland or perhaps some other Judge of the Superior Court?

THE DEFENDANT: Yes, I do.

MR. REICHMANN: To the included offense of violation of Section 245 of the Penal Code, assault with a deadly weapon, how do you plead at this time? Guilty or not guilty?

THE DEFENDANT: Guilty."

Sentencing was set for October 29.

2. On that date, the court said that it had read and considered the probation report, and was ready to fix sentence or probation. Defense counsel said that given the circumstances of the case and the probation report, he felt that an evaluation of the defendant should be made in a state diagnostic facility, pursuant to § 1203.03 of the Penal Code.¹ The court said it was willing to have such an evaluation made if the Director of Corrections concluded that defendant was eligible and that facilities were available. The matter was continued till November 12, and then till November 19, at which time defendant was committed to the Department of Corrections for a § 1203.03 diagnosis.

3. At sentencing the court and counsel had before them a probation report dated October 21, 1965. In the report, Sailer is quoted as having said:

"My mind was mixed up at these times. . . . I would also like any help from this court I can get. I would also like to see a doctor myself, if appointed by the court or when I am released. I still love my wife and kids and the shock of actually shooting her convinced me I need help."

Sailer's brother was quoted as saying that Sailer was like a stranger, with his thinking and nerves in a very bad state. He, too, mentioned the desirability of medical help.

4. In his evaluation, the probation officer himself said:

"At this point, the defendant does not have the capacity to control his actions and to choose between alternative courses of behavior. . . . The one ray of hope is that the defendant did turn himself in and perhaps he himself is cognizant of the fact that he cannot control his hostilities and does need help. It is felt the defendant should be removed from the community and perhaps the facilities at Vacaville could meet the defendant's needs at this point. . . ."

5. On March 18, 1966, court was convened to consider the § 1203.03 report, and to fix sentence. The summary recommendation sheet signed by the Associate Superintendent of the Reception Guidance Center recommended commitment to the Department of Corrections. In the statement of reasons, it was said that:

"Psychiatrically, prognosis was considered guarded in that subject acts impulsively with little consideration for the consequences of his actions. . . ."

Most of the individual evaluations underlying this recommendation were more specific in pointing to mental instability.

6. The Social Evaluation dated December 20, 1965, referred to accusations made by Sailer against his parents, and said:

"His accusations toward them are unfounded and characteristic of a bizarre character trait exhibited throughout the interview."

It also mentions his "tendency to act irrationally and impulsively . . . ."

7. The Psychological Report dated December 10, 1965, found Sailer to have a "paranoid orientation," and summarized in its "Diagnostic Impression" by saying "Personality pattern disturbance, paranoid personality."

8. The Psychiatric Report dated January 11, 1966, came to a different conclusion:

"He is not particularly anxious or depressed and shows no other significant psychoneurotic phenomena. . . ."

It did go on, however, to say that:

"He appears to be a rather impulse-ridden character who acts out impulsively and has extreme difficulty in handling hostility appropriately."

9. With these reports in hand, the court suspended the proceedings without imposing sentence, and placed Sailer on supervised probation for five years with certain conditions, one of which was that he be confined in a county jail for one year. The court recommended that this be a work camp or honor farm.

10. On September 13, 1966, Sailer was back in court on the basis of his probation officer's report that he had escaped from the honor farm on June 2, voluntarily turned himself in on July 11, 1966, and admitted to the officer that he had escaped. His attorney indirectly confirmed the escape. The court mentioned an Information charging escape, and an agreement to drop that charge if probation were revoked and Sailer sentenced to state prison. The court then said:

"In view of the defendant's violation of his probation here, the Court feels the sentence should be imposed in this case, probation revoked. I do not know whether probation has been revoked yet or not, but in any event, if it has not been revoked his probation is now revoked."

11. The probation report on which the court relied in revoking probation was dated July 22, 1966. In it, the officer reports that defendant's mother believes that he needs mental help. The report goes on to say:

"The defendant very readily speaks of other people as being insane in his opinion. In reality it is the opinion of his probation officer that the defendant is the one that is really sick. . . ."

The report goes on to recommend that probation be revoked.

12. Defense counsel was ready to waive further arraignment, but said that Sailer had something to say. Sailer then spoke for the first time in this proceeding, saying that while on the farm he had been unable to pursue his fight for a new trial, and that he had escaped in order to try to get money to do so.

13. Defense counsel then mentioned that on the date of the original sentencing (March 18, 1966) Sailer had wanted to withdraw his guilty plea. The record is unclear, but it appears that Sailer's counsel had refused to make the necessary motion since the plea had been entered with the advice and counsel of another attorney. Counsel went on to say that he saw no legal basis for allowing withdrawal of the plea.

14. The court made reference to the absence from the record of any motions to withdraw the plea. It went on to say that:

"The Court is of the opinion it has no jurisdiction to entertain either a motion for a new trial or a motion to withdraw the plea of guilty. Even if there was jurisdiction to entertain either of the motions, the Court, being thoroughly familiar with defendant's background and facts and circumstances of the crime committed, would deny either one or both of such motions."

15. The court sentenced Sailer to state prison for the prescribed term, saying:

"It will be the strong recommendation of this Court that the Director of Corrections place this man in the California Medical Facility at Vacaville. I think this defendant is in need of psychotherapy and that that is the facility that can best help and treat him for any mental or emotional problems that he may have, and it appears from the report of the Director of Corrections, pursuant to Section 1203.03, that the defendant is in need of such therapy."

16. All of the court proceedings described above were conducted by the same judge.

17. Sailer has pursued his state post-conviction remedies, and is now properly before this court.

Sailer's Competence

As the facts stated above indicate, the record is replete with evidence which raised doubts about Sailer's mental stability and capacity. The court at various times heard a request for a § 1203.03 observation; read a § 1203.03 report full of comments about Sailer's paranoia and instability; and made a statement suggesting that psychotherapy was in order for the defendant. Yet at no time did the court hold a hearing on Sailer's competence to stand trial, or to plead guilty, or to participate intelligently in a sentencing (or probation revocation) proceeding.

In a case fairly analogous to this one, Moore v. United States, 464 F.2d 663 (9th Cir. 1972), the trial court had had before it a psychiatrist's report which detailed an...