Saunders, In re

• Decision Date: 07 August 1970
• Docket Number: Cr. 14272
• Citation: 88 Cal.Rptr. 633,2 Cal.3d 1033,472 P.2d 921
• Court: California Supreme Court
• Parties: , 472 P.2d 921 In re James W. SAUNDERS on Habeas Corpus.

Page 633

88 Cal.Rptr. 633

2 Cal.3d 1033, 472 P.2d 921

In re James W. SAUNDERS on Habeas Corpus.

Cr. 14272.

Supreme Court of California In Bank.

Aug. 7, 1970.

Don Edgar Burris, Los Angeles, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

James W. Saunders, presently in the lawful custody of the Sheriff of Los Angeles County, seeks a writ of habeas corpus on the ground that he was denied the right to the effective assistance of counsel at his trial.

After a trial by jury petitioner was found guilty of first degree murder (Pen.Code, §§ 187, 189), first degree robbery (Pen.Code, §§ 211, 211a), and assault with intent to commit murder (Pen.Code, § 217). The jury fixed the penalty on the murder count at death. By judgment dated April 7, 1965, petitioner was sentenced to death on the murder count and to state prison for the term prescribed by law on the other counts. On automatic appeal the judgment was affirmed in its entirety by this court. (People v. Hiss and Saunders (1967) 66 Cal.2d 536, 58 Cal.Rptr. 340, 426 P.2d 908.) However, in In re Saunders (reported sub nom. In re Hill) (1969) 71 A.C. 1039, 80 Cal.Rptr. 537, 458 P.2d 449, we determined that error of the type condemned in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 had occurred in the trial; we therefore granted a writ of habeas corpus, recalled the remittitur in People v. Hill and Saunders, reversed the judgment insofar as it related to penalty, and remanded for a new penalty trial. ¹ By order of the trial court petitioner was removed to the custody of the Sheriff of Los Angeles County to await the new penalty trial.

We have issued an order to show cause and have stayed the new penalty trial pending determination of this proceeding. We have also appointed counsel to represent petitioner before this court.

It is petitioner's contention that his convictions were obtained in violation of his constitutional right to the effective assistance of counsel in that his appointed trial counsel failed to consider, investigate, and present available evidence tending to establish his diminished capacity to commit the charged crimes. (See People v. Conley (1966) 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Gorshen (1959) 51 Cal.2d 716, 336 P.2d 492; People v. Wells (1949) 33 Cal.2d 330, 202 P.2d 53.)

1. The Undisputed Facts

We first set forth undisputed facts relevant to this contention as they appear from exhibits and records on file in this court. ²

(1) On October 22, 1964, a Los Angeles attorney was appointed to represent petitioner at trial, which was scheduled to commence on February 8, 1965.

(2) On December 8, 1964, petitioner's mother, a resident of Florida, directed an apparently unsolicited letter to counsel with the expressed intention of informing him of certain facts in petitioner's background. The letter stated in substance that petitioner was a 'normal boy growing up in a nice home' until, a few years prior to the incident for which he was to be tried, he suffered a fractured skull and two brain concussions; that these injuries had the effect of triggering 'eratic (sic) behavior' on petitioner's part; that three brain wave tests administered to petitioner following these injuries showed slight organic brain damage; that the doctor who had treated petitioner explained 'that at times he will by perfectly normal and then * * * at times * * * he does not know the difference from right or wrong'; and that hospital records showed that petitioner had 'a type of epilepsy.' The letter also stated that petitioner was 19 years of age.

(3) Counsel did not answer the letter. Nor did he make any effort to Himself contact the doctor named by Mrs. Saunders or to Himself obtain petitioner's medical records.

(4) On December 10, 1964, petitioner directed a letter to counsel which indicated that petitioner had 'made arrangements to have complete medical and mental diagnosis sent to your offices for whatever help it may be.'

(5) The trial began on February 8, 1965. Counsel presented no evidence in petitioner's behalf. The defense was directed solely toward excluding from evidence two extrajudicial admissions of petitioner, the second of which clearly indicated that petitioner knew that a robbery was planned when he drove his two codefendants to the liquor store which was the scene of the murder and waited outside for them in the car. ³ Counsel's efforts to prevent the admission of these statements were unsuccessful. The guilt phase of the trial concluded on March 5, 1965, when the jury found petitioner and his two codefendants guilty of the charged crimes.

(6) On March 5, 1965 (the date of the guilt verdicts) Dr. Sidney J. Merin, a Florida clinical psychologist, sent to petitioner's counsel a letter and several medical reports dealing with petitioner. ⁴ The letter stated that petitioner was first examined in 1961 and, there being some question as to organic brain damage, an electroencephalographic study was made. The enclosed report of that study concluded: 'Abnormal electroencephalogram denoting a focal encephalopathy predominantly right frontal.' Dr. Merin's letter went on to say that at that time (1961) petitioner manifested rebellious and 'negativistic' symptoms and that psychotherapy and treatment in a 'residential educational treatment center' was recommended. However, family financial circumstances rendered inpatient treatment impossible and outpatient group therapy and chemotherapy were utilized--apparently to little effect. According to Dr. Merin, he saw petitioner again in 1964 (apparently shortly before petitioner came to California) but then noted little improvement. The letter concluded: 'This is a young man who will probably continue to come into conflict with the law until an adequate and sustained treatment program is developed for him. James was in group therapy with me for a short while as well as in individual treatment. Because of the nature of the character disorder or antisocial activity, little could be done in the short period of time I had with him. He certainly needs continued psychological help but there is no guarantee that he will not continue in antisocial behavior while he is being helped. The nature of this type of personality is such that considerable time is required to redevelop or repattern his characteristic mode of behavior.'

(7) Counsel made no effort to reopen the guilt phase of the trial on the basis of the materials received from Dr. Merin.

(8) The penalty phase of the trial began on March 8, 1965.

(9) On March 9, 1965, petitioner's mother sent to counsel records substantiating that petitioner was 19 years old at the time of the offense. In the accompanying letter Mrs. Saunders again maintained that a marked personality change occurred in petitioner following the second concussion suffered by him prior to 1961.

(10) At the penalty phase of the trial, counsel offered no evidence in mitigation of penalty and called no witnesses in petitioner's behalf. ⁵ His argument in favor of life imprisonment rather than death was wholly based upon the fact that petitioner was not an actual participant in the killing.

(11) On March 11, 1965, the jury returned a verdict of death as to petitioner Saunders.

(12) On April 7, 1965, petitioner's motion for reduction of penalty was denied. In the course of its ruling the trial court stated: 'If there is a question of law involved, if there is a question of some mental deficiency involved here, if I felt that the mental state of this defendant was such that he could not deliberate, could not form the intent to commit the robbery which resulted in the murder, I wouldn't hesitate to overturn the verdict of the jury; but under the facts in this case I find no justification for disturbing their verdict, * * * and the motion to reduce the penalty is denied.'

(13) The same attorney was appointed by this court to represent petitioner on his automatic appeal. On October 10, 1966, while the matter was pending on appeal, petitioner wrote to counsel and stated: 'I understand that two weeks prior to my trial you were sent the medical and psychiatric reports and history of myself. I have just learned of this three weeks ago. Why was it not mentioned to me? Why was it not used in the penalty trial? My source of information on this matter was (Dr. Merin) and also my Mother.' Counsel replied on October 21, 1966, to this effect: 'It is true that I did receive medical and psychiatric reports with regard to your case. I am certain that I did mention it to you and felt that it would in no way assist at the trial of your case.'

(14) The matter which petitioner now seeks to raise was not adverted to in any way in the proceedings before this court relative to petitioner's automatic appeal. On April 27, 1967, this court affirmed the judgment against petitioner Saunders in its entirety.

(15) In June of 1967 petitioner substituted attorney J. Perry Langford in place of trial counsel. When trial counsel sent the records in the case (including the reports sent by Dr. Merin) to Langford, he included a cover letter which stated: 'I would like to call to your attention the fact that I did not use the doctor's reports or birth certificates anywhere in the court below or on appeal. It was being saved as insurance on a clemency hearing--and I hope it pays off. The significance of the birth certificate is that it would make Saunders 20 at the time of the crime, rather than 25 as he claimed. It might well be of substantial value.' There has never been an application for clemency made in this matter.

(16) Attorney Langford prepared a petition for writ of certiorari in petitioner's behalf which was denied on December 4, 1967. (Saunders v. California (1967) 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487.) The matter now...