Guenter H. Schoeller v. Walter Dunbar, Director, California Department of Corrections

BARNES, Before HUFSTEDLER and Appeals, United States Court of Judges. KILKENNY, Circuit Ninth Circuit.

Feb. Judge.* KILKENNY, Circuit judgment

Appellant is critical denying peti- of the District Court corpus. tion for a writ of habeas May, 1964, appellant charged, by indictment, violating Sections (murder) (assault

deadly weapon with intent to commit murder) Penal the California Code. Appellant’s privately retained counsel arranged pri- for his examination psychiatrist. reviewing vate After these findings, appellant and his counsel con- insanity cluded fense available and that mentally competent to understand proceedings against nature him cooperate and in his defense with Subsequent examination, counsel. appellant, present, with his counsel with- previous drew his of not violating entered Sec- * Judge Oregon argument. at time of District for the District of ” ‘competent There prosecution dis- to stand trial.’ turn, the 187. tion charge. nothing that the in the record to indicate At the Section missed entry appellant, agreed appel- of his at the time of the hearing, that it was same plea guilty, guilty plea entering to a of was unable to understand his lant was charge against degree him or first, the second, mur- nature of rather than a fully cooperate charge. that he was unable der attorney. question, with his Without judge’s own Subsequently, on entry appellant, time of of his at the sentence, motion, a and before ability plea, his had the to consult with plea of on held was whether lawyer degree of ra- with a reasonable voluntarily made and was rational, understanding tional and had a suffering from mental whether he was factual, understanding as well as a incapacity. Appellant and his counsel proceedings against nature of open appeared that stated him. “I was don’t care” attitude His men plea the result was not clearly repentance deep result of a infirmity part appellant on the tal resulting the murder from of his beloved basis, fact, that there was shooting The kill- of another. insanity plea a under Sec or an charged with was Penal Code.1 everthele tion 1368 to an the climax love af- involved abundantly po ss, certain to be strange fair. do not believe it re- We a placed appel judge sition, the state trial person go action for normal a a into institution, Vacaville, a lant diagnosis depression committing think sui- and recommendation when, jealous rage, cide he kills 1203.03 of the Pe provisions of Section girl Appellant, at the time of loves. receipt from nal On Code. high killing, principal awas school institution, after another this working Degree toward Masters hearing,2 judge sentenced Comparative His Literature. tests prescribed prison the term to state Vacaville, compared with others by law. tested, there revealed that he IQ. in the record which ceptionally high He was classified ap- possibility point would “superior toward intelligence”, as one of pellant’s time suffering mental imbalance impair- from “intellectual bargained for count one atmosphere, dismissal ment.” In this factual nei- in the and for a indictment reduction tendencies, ther his suicidal nor degree degree from first second mur- pressions, could have him be caused der other is that he had suicidal substantially comprehend unable to signs tendencies, depression charge exhibited coop- nature of unable to and, according attorney, attorney. erate return hisOn “medically sense, ill a medical but Vacaville, from would will- only thing 1. “THE May that COURT: mitment back the latter orig early part concerns June, plus my me is whether that and the own acceptable legal psychiatrist, inal Faircloth, Dr. both of them viewpoint. indicate that there was no what- basis you, Berman,* you insanity plea. However, Do Mr. are noi soever for an — longer you attorney, [sic] I did advise the that I felt Now, you then. mentally have discussed man this ill in medical sense. you me and have advised me on more DEFENDANT SCHOELLER: I do previous accept than one occasion to this time this. I will under no circum- you plead insanity. the medical information stances had was such that no basis THE We COURT: this. understand guilty by for a of not reason of in- DEFENDANT And SCHOELLER: sanity, course, agree certainly is that so? I was not ”* * * MR. BERMAN: That correct. insane. * please, If Your Appellant’s attorney. Honor both the medi- retained records, cal which I examined from the County Hospital previous from his com- 2. November respondent ingly accepted probation. For witnesses testified lengthy attorney, by matter, insane. The trial declined rebut- testimony respondent’s argument, tal medical tried to convince the deeming proper.3 sanity, stipulation this probation From sufficient ap- testify crystal doctor footnote, that a that when it is clear attorney spondent probably pellant was examined and his could a few months trial, even before that he knew the nature of have withdrawn the charges charge degree cooperate as the as late and could with his as to the second completely Appellant’s disserta- counsel. the final jected respondent’s insanity. tion at time demonstrates mental claims of Here, appellant exactly capacity equal to, above, op- the took if not position. posite Here, average being. in- human insisting sane, sisted that he was Robinson, nothing in We find Pate v. changing from not 15 L.Ed.2d guilty, previous had no of irra- record sug (1966), remotely even which produced tional conduct and no substan- gests hearings held the state possibly tial evidence in- constitutionally adequate, were sane, incapable understanding the na- Rhay White, 385 nor does against charges him, ture or as- suggest 1967), contrary re sisting Pate, in his own In defense. setting presents sult. Pate a factual grant respondent Court failed to a hear- foreign entirely one us. before ing. p. There, respondent, who convict opposite case. exact is true in this murdering wife, ed of his common-law argued that Here, it could well be long history behavior, had a of disturbed overly zealous of court was psychopathic pa had been confined as a competency hearings and, sua violence, rights tient and had committed acts of including killing sponte, of his infant son ordered to Vacaville attempted and an suicide. Four defense report. for ask observation We 3# many time can no fashion would like to draw attention of a mental it was renewed the Court his mind then. thing Honor, perhaps may in Vacaville earlier been recommended for countered tion? a few words to cuted. Does he want eligible This is The statement A “DEFENDANT DEFENDANT MR. BERMAN: THE COURT: THE COURT: Does he want MR. BERMAN: “THE COURT: newspaper ^[*] weeks reported I for of the facts appeal thought completely this probation. ^[*] happened ago condition which I at longer that, capital I in a recommendation with a or desire to SCHOELLER: he wanted to be exe- and it Well, I this week. Does Yes, SCHOELLER: ^[*] sir.” question deplorably certainly in error. that, even probation? appeared probation, sentence. be allowed to while I he has Your Honor. he want was born out indeed, remotely ^[*] think he was made appeal distorted in which changed but had it? proba- some- I had Your ^[*] still this say I lightened time enough amount terpretation, thus demonstrated. pared made probation, bation sponsibility would but certain moral values. they pression Department gratitude genuinely scribe risively Therefore, However, question my Vacaville, ^[*] stiuation, me look like obligation like to as a sound one. I do colloquist worse treated anything, although tried done. entertain realize ^[*] hope at the it profound I of Corrections who I should the staff members full places upon must counter objective accept in this also Specifically same cognizance help [sic] justify ^[*] some sort of at this also of it facts gratitude something legal certain if this with it me and evaluate be It time I am sober speaking analysis article, somewhat the confidence is not is the and their granted me in terms $ tradition and time at the same in terms not so for what profound better.” the re- modest an ex- merely of en- people it ^[*] have pro- pre- nut, bad has de- in- I court, do The district the court its eviden could what more tiary hearing, thoroughly Appellant explored existing circumstances? proceedings. required court’s com he had sisted prehensive cooperate decision, consisting of thir capacity refused and even suggestions typewritten pages, clearly teen enun many court’s facts, ciates as well examinations. connection with controlling statutory decisional Pate requires do not believe We law. It would serve no useful every, cor- court, habeas to further elaborate his definitive inquiry to proceeding, limit its pus findings Beyond and solid conclusions. might made have been record which they question, clearly are not erroneous. majority in state trial that, independent Aside from our exami the in- thought limit so it best Pate nation of the state court record con had consist- quiry defendant where us that vinces re had the insanity, ently- another his and claimed quired capacity he at the time hearing for over six not be held could plea guilty entered his and at the here years are not the fact. We after- time he was sentenced. Appel- year problem. the six faced with affirm We for the reasons stated in 20, November on lant was sentenced decision, findings the and conclusions 9, 1965, early he as As March 1964. judge the analysis trial and on our own seeking the California relief of the state court record. Appeals under Rule Court State 31(a) Rules of Court. of the California BARNES, Judge, Circuit concurs. 2, 1965, June This relief denied on evidentiary then He after HUFSTEDLER, Judge (dis- Circuit Supreme Court the asked California senting) . being petition on hearing, denied respectfully dissent. Then, May 4, 1967, July 8, he on The failure of the state trial court present petition. the filed evidentiary hearing order an to deter- circumstances, a number In our mine only approve, cases not acceptance of Ninth Circuit trial and its plea judge require, guilty the district but seem to when there was substantial evi- hearing appellant's the on issue validi incompetency hold dence of were a ty plea. v. United process of the- Jones denial of due requiring of law 1967); (9th States, Cir. issue, the writ unless the state court States, F.2d 345 v. United appel- Castro permits vacates the sentence and 1968); v. Twee United States guilty plea. lant to withdraw Here, 1969). (9th Cir., dy, 419 F.2d 192 following facts. record reveals the The appellant received a the asked for 24, 1964, appellant April shot On dis full blown girl friend and shot killed his trict He called his own witnesses shooting landlady. her The wounded including theirs, the state called during quarrel fray between occurred original doctors, Mr. least at one appellant and she had the decedent after original Berman, attor rejected marriage proposal. The Superior judge ney, who and the during quarrel landlady intervened hearing. Appellant conducted the eject police and threatened to call position to now claim her, appellant. He shot then turned judge lim court should upon the shot her twice. decedent and transcript ited police Appellant later surrendered occurring proceedings in state court. day. any event, the district followed Jones, procedure represented public Castro Appellant, outlined arraigned May 15, defender, other cases. degree plea charges purpose murder of first for the of en- deadly weapon tering plea a different to Count 1.” and assault pleaded charges He The murder. clerk read the from the in- intent to commit charges, pub- appellant dictment guilty to asked both how plea plead. responded “guilty,” indicated He lic defender guilty by changed spoke during might proceed- word later ing. insanity. questions put No other reason of attorneys stipulated him. The physician May 1964, the On degree murder, appel- towas second to the County certified Jail lant’s motion to withdraw his Francisco San Ward Detention granted, prosecuting attorney’s and the diagnosis Hospital County General motion to dismiss second count was diag- jail physician and treatment. granted. thereupon The court issued an “suffering then nosed recommending appellant’s referral Appellant ob- tendencies.” suicidal facility days to Vacaville medical for 90 interviewed, diagnosed by served, obtaining for the facili- while he was medical examiners several ty’s recommendations the institu- hospital. examiners submit- disposition appellant. tional reports, the first two least ted sentencing court deferred until Vacaville of the record before which were requested had acted the court’s ref- court, each dated June erence, and ordered returned signed by report, two first 1964. The County days Jail. Four later the examiners, said, part: “Threatens jail physician again committed him to given if he not death sen- kill self is hospital upon diagnosis ap- his that thought of for Had suicide some tence. * * * pellant suffering from “suicidal prior to offense. weeks tendencies” and was “a definite Suicidal get to to make one more effort Decided * * * risk.” hospi- He was reexamined at the if her she to come back [and] * * * report tal. The of the examiner con- wouldn’t he would kill himself. diagnosis cluded with the “Reactive de- jilted again- re- him he doesn’t She —and pression obsessive-compulsive person- happened next member what but evi- ality” with the he recommendation that dently he killed her instead.” The re- be institutionalized. port presently psychotic, ended: “Not potential re- hospital but suicide risk.” Another From the on November port by 1964, appellant a doctor recited that judge. different wrote to the trial discharge doctor’s observations and concluded with He told the court he wanted to impression: “Depression Berman, represent with sui- Mr. and he to wanted possible plead guilty cidal tendencies? A schiz.” He offered to himself. to report said, part: “Vague degree “contingent third murder, & se- first reasons, about imposition cretive murder & seems of the death sentence.” psy- depressed, undergo any schizoid & if don’t know He said that he refused underneath, mild, coop- chotic or not not more medical examinations. On enough history day, appeared erative with exam no& same Mr. Berman in court available.” and recited that he been informed agreed accept ap- that Vacaville had August 24, 1964, appellant ap- On pellant. deputy attorney re- peared lawyer, private for trial with a quested brought that down be Berman, Mr. Jack had been re- who September on the 8th of removal appellant by tained for his sister. The danger- “just because he is so Vacaville proceeding that and followed was brief ous himself.” perfunctory. Mr. Berman told the court n again 8, 1964, appellant September that he had the matter with On discussed appellant, attorney, appeared the district and He insisted that court, my prepared disposition and “final that “we are there be a case,” plead make a motion former he his offer to to withdraw the and renewed mentally degree re- felt He that I the man was murder. to first * * * discharge I Ber- a medical feel Mr. ill in sense. peated his wish lawyer properly represent He vol- as a himself. man and compe- man’s in terms of the his reasons entered to the unteered proceeding. guilty plea due in a 1368 He under- “entering tence are * * * doing. suffering I from stood what I am the fact certainly ‘guilt commitment psychotic think complex’ desire or * * * made there medi- [Vacaville far as the studies punished. [A]s facility] cal would indicate whether not feel I do is concerned crime itself legal opinion have, I which is based responsibilities it was since criminal any personal knowledge, beyond anything I medical which act gathered hearsay consciously I did. ever intended psychiatrists, my entering plea are would confirm whether reasons right saying man personal, philosophical I am a, let’s call cognizant fully disclose, actions I do wish nature which provisions thereup- all, 1368.” and I is about believe please on committed California sentence Your Honor would now Facility He Medical at Vacaville. get with.” me this matter over I added, concerned far as I am1 “[A]s Following confinement, observa- my point life at which have reached tion, Vacaville, and treatment longer my is no life continuance aminers submitted a detailed necessary any way sirable appellant’s condition, including about * * * emotionally logically, possible, following observations: “The amnesia intellectually.” Sentencing, said, that he claims for the event [murder] meaningless “nothing pre- will probably quite valid and is characteristic taking my find me from life vent of so-called ‘dissociative reactions’ opportunity.” a suitable repressed impulses anxiety discharged or deflected into [sic] listening to similar After those and to expression symptomatic which consists appellant, the court statements blotting of a awareness of out of un- only thing “The that concerns marked: pleasant or intolerable realities. This original plea me or not is whether by period was followed of intense de- acceptable legal viewpoint.” was from a pression preoccupation and morbid juncture At the court to Mr. this turned guilt feelings only, which could “Now, you dis- Berman and said: have opinion, by eliminating be atoned for you cussed this with me ad- and phase The of himself. acute this disor- pre- vised me on more than one occasion * * * past. der is now It must be time infor- vious this the medical recognized, however, that he still has an you had mation that such that underlying emotional disturbance of con- by was no basis for a of not magnitude siderable is to insanity, of is that reason so?” [None accomplish anything with his life he re- of the discussions court al- which the quires psychiatric intensive treatment.” reported, pro- luded were the record probation, doctor recommended vides clue to circumstances under “provided psychiat- he obtains intensive they place.] which took Mr. Berman * * *” ric treatment. plied affirmatively, and then added: 20, 1964, appellant On November records, the medical I “[B]oth which sentencing. returned for The trial court County Hospital amined from the from prison him for sentenced state previous commitment the lat- back prescribed by term for second de- law May early part ter and the gree murder. June, my plus psychiatrist, own Dr. Faircloth, both of them had indicate After exhausted all of postconvietion remedies, there was no basis whatsoever for sanity However, plea. petition habeas did filed his the District advise by process another was of due He examined violation rests Court. Blinder, shortly assumptions contrary before psychiatrist, Dr. of law that are Upon controlling principles the basis of federal law stat- appellant and his re- ed in Pate v. Robinson his examination criminal the 1964 L.Ed.2d the record of 815 and view Rhay 1967) hospital together with the v. White proceedings, reports, Blinder testi- Dr. medical opinion the in his fied principles Those can be summarized as time mentally incompetent at evidentiary hearing follows: An on the The notes entered. compe- issue a criminal defendant’s Fair- after Dr. made had Mr. Berman tency constitutionally to stand trial early examined cloth compelled any during time his trial August introduced. appears which there “substantial evi- No results. “Faircloth notes were: incompe- dence” that the defendant Poss. Very disturbed. psych, defense — tent. Such “evidence” is confined to man. Con- crazy. Hyper-rational quite testimony formally or exhibits intro- Might kill some- potential. sid. suicide duced at the It includes all infor- trial. some awareness one else. Does have properly mation before the court indicat- might Superior again. man. fact he kill illness, defendant’s includ- going in his head. Can’t know what is ing, example, court’s obser- Very psychotic or Doesn’t know if not. vations of the defendant’s demeanor and day Vaca- to exam. disturbed. Diff. conduct, reports medical contained in de- [Periods added.] ville —” reports file, probation fendant’s determining officers. denying pe- Court, The District substan- tiality incompetence tition, expressed petitioner evidence said: “While triggering capital pun- competency his desire to be sentenced hearing, disregard crime, attempted trial court must ishment suicide tending prove times, competen- evidence considered ex- several cy mentally tremely depressed must assume the truth ill all evi- indicating incompetency. dence him, observed were not who these facts weigh evidence, present trial court cannot as to substantial credibility witnesses, determine petitioner’s proceed nor petitioner resolve conflicts until the same time acting lucidly, on the rationally, speaking issue has concluded.1 Francisco San County Hospital ‘pres- him as described Supreme In Pate States United ently (but depressed),’ sane [exhibit Illinois Court overturned an murder con- Berman in- references Mr. had omitted] viction trial because court sentencing judge dicated to the the fact sponte sua evidentiary an failed to hold petitioner by had been examined a hearing on the of issue Robinson’s com- psychiatrist psy- that from both petency to trial. stand evidence of points chiatrist’s and Mr. Berman’s of incompetency introduced was at Robin- problem peti- there view was no primarily pur- son’s murder trial competency proceed, tioner’s to and the pose supporting insanity Robinson’s petitioner vigorously pro- himself was defense. of Robinson’s Some relatives any suggestion that he was testing family a friend testified to his er- competent. years ratic conduct several before trial. opinion mother His her stated conclusion that District Court’s presently There insane. was intro- the failure of trial court to the state or- hospital a mental duced a record of hearing der an on the issue capacity committed of defendant’s stand which he had been and from trial People Pennington Cal.Rptr. 426 P.2d 942. 66 Cal.2d was convicted. as restored the defendant for which released been incompetency years trial. As If substantial evidence before some seven appears on the face of incompetency, trial against this evidence record, for an evi- stipulation there is no need trial a be- introduced there was dentiary hearing. prose- There are no facts lawyer and the Robinson’s tween find, doctor, court to be- federal habeas cuting attorney that a named question testify the de- trial, is not: Was cause at called as a witness question competent? then fendant opinion Robinson “knew in his evidence is: there substantial charges against Was him and nature of the record before trial court cooperate with counsel was able incompetent? That defendant question then months or three him two he examined question decid- is a law be (383 trial." before solely the trial ed from the record before 841.) court the trial revealed As determining question, actively record, participated Robinson weigh the federal habeas court cannot alertly trial. conduct against competency affirming the evi- Court, Supreme The Illinois incompetency support to find dence of trial court conviction, held that the order a for the trial court’s failure to compelled motion to on its capacity on Robinson’s trial, did not the evidence because stand However, when there was evidence his then about raise sufficient incompetency presented to a trial court federal dis- competence. Thereafter that was made pe- habeas denied Robinson’s trict court record, evidentiary hearing court an evidentiary hearing. tition without necessary to the record. reconstruct reversed, Appeals The Court Rhay This is the situation v. White Supreme on cause came before 1967) 385 F.2d 883. theOn agreed certiorari. The Court face the record White’s trial Appeals that Court of the failure incompetent hints that he sanity hearing trial court order a stand much the informa- But trial. deprivation process. evi- of due No relating tion before the dentiary federal court not in the miss- issue was record.2 The required because the state trial ing items of the trial court’s consisted enough record on its face disclosed evi- personal of White’s erratic observations compelled dence to the trial and of behavior off-the-record discus- interrupt to hearing homicidal trial sions between and the White’s counsel then stand evidentiary hearing trial court. An trial. Robinson’s rational dur- behavior petition held federal White’s habeas stipulation trial and ascertaining for the the full examining testify psychiatrist would enough record before the trial court. In the that Robinson was sane to be Rhay tried could not be excuse relied situation the federal court was the trial court’s a com- failure to order quired facts, to find factual petency hearing. findings were limited to a determination happened during of what trial. White’s Thus, Pate teaches that the role of the found, Once those facts were the federal federal habeas court is limited to an ex- presented proceedings habeas court with the amination of the before upon trial question court the trial of the offense identical in Pate.3 law stated any clearly 2. “[T]lie situation 385 here was event F.2d demonstrates.” one, Dusky States, 362 v. United at 884. 402, 824, 788, U.S. 4 L.Ed.2d (W.D.Mo.1969) where elements were involved that were 3. Brizendine v. Swenson beyond F.Supp. 1011, the information of the trial rec- 302 proper is illustrative of , ord, by as the held the District role of a federal habeas court.

1191 cy Rhay incompetency. or Pate and a court review- That In both function rarely, ever, ing performed habeas could the decision of federal with by evidentiary hearing. petit court’s out an lower court is bound upon issue of ioner the ultimate such a case conclusion bears the burden proving situation, law, Rhay incompetency in the is fact indulged (See by stand trial. the usual intendments Butler v. bound United findings (8th 1967) 522, of the States in favor of the factual Cir. F.2d 384 (1968) 952, cert. denied 391 lower court. 88 S. 1854, 865.) Ct. 20 L.Ed.2d Rhay dis- cases are to be The Pate and tinguished which, from a on col- The record case of the trial state attack, a defendant contends that case at bench lateral substantial contains incompetent in fact to stand evidence incompe- he was trial, case, tent but no substantial evidence trial. This is Pate incompetency presented Rhay, competency-in- to the trial rather than (E. g., Indeed, fact Smith v. United States ease. the evidence of this (9th 1959) 210; incapacity Cir. F.2d Robinson far is (9th 1941) stronger v. Johnston 118 F.2d than Cir. Pate. 998, 1001, reports on oth- The vacated remanded trial record includes medical grounds (1942) 649, suicidal, er severely pressed, possibly schizophrenic. L.Ed. rev’d on other 1942) 202; grounds Cir. Added appel- to the medical data was App.D.C. repeated v. Allen Sanders lant’s own conduct —his insist- 717.) being death, put 100 F.2d Under latter ence his threats circumstance, executed, the function of the court to kill himself if he were not conducting proceeding on collateral and his admission that he no had mem- competen- ory shooting.4 Ability coop- attack to decide the fact of There, study record, the state ordered trial court had “to the trial or to con- psychiatric evidence, examination determine sider other order deter- history the defendant’s stand mine whether the defendant’s applicable before, during, for law, murder. Under the and actions after the trial, such be based should tona have raised a fide finding there was doubt of “reasonable to stand trial.” (302 F.Supp. 1019.) cause” to believe that incompetent. the defendant was at held, Accord, An examination United ex rel. Cole States and, report, F.Supp. (S.D.N.Y.1969) satisfied doctor’s Follette 1137, decided that 1149. required proceed. trial could Compare (2d A conviction resulted. The district United Silva States v. holding corpus, 1969) issued a writ habeas 418 F.2d 328. informed Silva had agent the trial court’s order of an exam- an F.B.I. time of his robbery ination tona created alone arrest bank fide incompetency Pate. commit suicide rather than stand trial. days “In case there no occasion A after his few arrival at the Fed- appellate Detention, whatever for an court or eral House of had swal- pos possibly a inquiry toonviction court to make lowed several articles of a dan- gerous into whether the evidence ad- then character. He was taken prison duced at trial did or did not corrobo- ward judi- judge’s rate the trial Hospital, definitive division at Bellevue where rays cial determination tona X doubt. were taken and he received some fide The tona doubt criteria of Pate v. undisclosed treatment. No determination fide once, Robinson need be established was made there mental condition. twice, application days A few later he was returned principles (302 F.Supp. Detention, of that case.” the House of where he subse- 1019.) quently made a At confession. a hear- proper scope The court indicated the to determine the voluntariness of the postconviction inquiry confession, a making court’s when the defendant denied psychiatric was examination not ordered: the confession “and also testified that 1192 imposition sentence,” lawyer the death erate one’s assist to deputy quests by requires an both the at- one’s than defense more torney appellant’s ability express coherently dismissed counsel determi to appellant (Dusky to to The put v. remove Vacaville. nation death. to be “hearing” purpose in- 402, not for (1960) was the 80 United States 362 U.S. competency; quiring appellant’s 788, 824; into Rees S.Ct. L.Ed.2d cf. rather, competency question 312, the arose Peyton (1966) 384 U.S. appellant, representing 583; him- 1505, then v. when L.Ed.2d Westbrook explained pleaded self, that he (1966) had S.Ct. Arizona any thought 1320, 16 429.) he he because had L.Ed.2d responsibility “it criminal in that was majority opinion attempts to ex- beyond anything act which ever patent error constitutional cuse the consciously did,” tended or had but he ways, withstands none which several pleaded guilty “personal, philosophi- for critical examination. cal” did reasons that he not wish to dis- implies First, majority opinion the expressed close. then an eviden- accorded that plea. that it his earlier should taken 8th, hearing September tiary on any No evidence of kind was taken on judge’s mo- own the trial it “on states: competency question pro- the that sentence, tion, and before ceeding. conceivably It cannot be char- guil- held on whether hearing complying acterized as a wheth- ty voluntarily made and requirements the of Pate. suffering mental inca- he er Second, majority emphasizes contradict-

pacity.” That statement referring judge’s following par- record in ed diagnostic days facility for 90 Vacaville (1) proceeding ticulars: pursuant Penal California Code § motion, own on the court's conducted implication 1203.03. The (2) directed it was not way referral some eliminates the need competency, an evi- it was not hearing. for Pate I re- dentiary The record shows ject implication. Referral under § September 8 was proceeding on posiconviction un- is a action 1203.03 response either one both held in law, der California request of events: of two determining aiding change of murder plea to trial court his degree “contingent disposition in the a convicted offender.5 first undergone previously pertinent provides: treatment had In 1203.03 § hospitals dis- “(a) at various case a defend- prosecutor orders, told the punishable is convicted an offense ant by hallucinatory visions, having imprisonment prison, about arrest, prior just court, disposi- heroin use of that a concludes attempts requires diagnosis commit suicide.” several of the tion case such (418 329-330.) pro- The district F.2d at services and treatment as can judge facility confession was volun- diagnostic found the vided at a of the De- tary. The Second partment may convicted. Corrections, Silva was order placed temporarily Circuit reversed: defendant be such compe- though facility period “Even Silva’s exceed 90 placed directly in is- days, provision tence never with the further sue, testimony concerning the cir- Depart- Director was such cumstances of confession ment of to the court Corrections diagnosis have or- should recommendations con- sponte 90-day sua nar- cerning dered the defendant within capacity period. row issue of his to make it. [(1966) Department “(b) See v. Arizona Westbrook The Director shall, days, 16 L.Ed.2d within Corrections (418 429], Robinson, supra." Pate v. cause defendant be observed 330-331.) F.2d at shall forward to amined

H93 judge explain majority made to that the trial fails how the of states existence bargain abundantly plea any respon- respect certain is in referral “to be appellant’s [concerning present- position sive to the constitutional issue nothing ed, supply any competency].” and I am to But there is unable suggest planation. Moreover, that was the that the record the record does indeed, and, support majority’s referral, the suggests of the statement finding by court is to the sofar as it that participated yielded contrary.6 doctors at Vaca- himself in or Nor did the bargain. question plea There is themselves some indication ville address trial competency appellant’s partici- that former of counsel clearly shows), pated supra, plea bargain, (as report, in a their the details of that the no indication were never revealed in rec- and we have ques- ord, nothing them consider this but there is in the record court asked by support report issued Vacaville to tion. The the statement that bargain, participated himself that cast considerable August during ap- there were. To the extent both that pellant’s participation appears September time his Novem- sentencing. record, opposed appearance for That the indication is that ber plea appearance before the trial entered on his behalf. final hearing, in no sense Finally, majority refers to the othei’wise, his com- or on the issue of conflicting ap- issue of petency or his to be tried pellant’s competency and concludes plea guilty. It enter a to appearance against him were resolved the conflicts sentencing only. There postcon- by court and in the state trial majority’s indication, either in the is no proceedings. state court did viction elsewhere, footnote 3 purport resolve the conflicts was free withdraw appellant was at the time the evidence evi- substantial time. And taken, tried, plea was or when his so, incompetent to dence he was do there an Were when he was sentenced. ap- report stated that Vacaville finding competency, implied underlying pellant emotion- “still has an constitutionally by finding fail would magni- al of considerable disturbance any evidentiary reason of lack psychia- requires “intensive tude” and by compelled Pate. The consti- tric treatment.” by appel- cannot be cured tutional error persuade the district failure to lant’s opinion Third, majority makes inwas collateral attack that he court on ap- point its characterization some incompetent It can- to stand trial. fact product pellant’s guilty plea as the bargain. majority opinion “the curb- cured reference to not be prose- counsel, diagnosis and recommendation con- the defendant or his court, probation cerning cuting attorney, disposition defendant’s the Department officer, diagnosis of Correc- and recommenda- or the case. Such tion port be in a written tions.” shall embodied copies of the shall be only upon intended 1203.03] the defendant or his 6. “This [§ served counsel, section sentencing probation primarily officer, in oases as a aid possibility. prosecuting attorney by probation How- the court receiv- where ever, is a delivery though report. this case even After granting pro- copies report, intention of the information had no bation, he felt the facilities disclosed contained therein shall superior anyone at Vacaville were else without the consent treatment penal disposition regular institutions the defendant. After case, those at except good preliminary copies report, treatment some all petitioner’s diagnosis ad- aid to the defendant or his and justment one delivered counsel, penitentiary life and start in a be filed sealed file shall recovery.” him on an earlier road and shall be available thereafter voluntary and (and to enter a standards evident- these of dismissed views stone understanding lawyer” plea, acceptance of long-suffering) defense ly process. Follette, due plea a violation of v. (United rel. ex Cole States Crosby v. (E. g., ex rel. 1149), United States F.Supp. supra, 301 790.) 1968) Brierley (3d Cir. 404 diagnosis years event after the judicial multiple at- appellant’s suicide denying ap- order I would reverse the tempts evaluations petition pellant’s writ of habeas for a suffering psychotic writ, he was corpus issue directions to merely normal depression evidenced order an the state entered unless setting “deep repentence” homicide. aside opportunity according an hearing on the The failure days after not later than for trial appellant’s competency stand issue of goes mandate down. de- our constitutional is not proceeding. The sec- the state fect in first, defect, glaring as ond guilty plea acceptance of this record.7 facts shown guilty plea in time the At the taken,

itially sub the court had before suf evidence that stantial America, UNITED STATES of fering and had from mental illness Appellee, tendencies; strong evidence suicidal this v. amplified by of the hear the time DIGGS, Appellant. Milton Cubit Nevertheless, 8, September 1964. No. 13767. accepted first without the court holding on com Appeals, United States measuring petency. de standards Fourth Circuit. competency to trial are fendant’s stand 1, April 1970. necessarily to those defin not ing identical plea of enter guilty. (Compare Dusky v. United 788, 402, (1960) 362 80 S.Ct. States U.S. 824, with v.

4 L.Ed.2d Kercheval Unit 220, (1927) ed States 274 U.S. 1009; 582, 71 L.Ed. see Westbrook (1966) 150, S.Ct. Arizona U.S. 429.) 1320, To extent 16 L.Ed.2d they com differ, the standards higher plead petency than are A trial. those of plead competent is not defendant guilty if mental substantial illness has impaired ability

ly rea to make a among pre soned choice alternatives na sented to him and understand the plea. consequences ture of the States, supra; (Cf. Kercheval v. United Peyton, supra, 312, Rees v. 1505.) strong Because S.Ct. fell short Boykin competency. Unlike v. Alabama therefore need not We question Boykin’s 23 L.Ed.2d retro- reach activity. the record here is not silent on the issue

Case Details

Case Name: Guenter H. Schoeller v. Walter Dunbar, Director, California Department of Corrections

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 24, 1970

Citation: 423 F.2d 1183

Docket Number: 23270

Court Abbreviation: 9th Cir.