*1 In Feb. [Crim. No. 16711. Bank. 1974.]
In re M. ERWIN WALKER Habeas Corpus.
Counsel General, and Edward A. L. Ashby Herbert Evelle J. Attorney Younger, James, General, Doris H. Jr., E. Hinz, Assistant William Attorneys Chief General, O’Brien, and Gloria Assistant Maier and Edward P. Attorneys General, DeHart, for F. Attorney Appellant. Deputy Brobeck, & Harrison Respondent. Atherton Phleger Phleger Marson, Remcho, Peter Donnici, John J. Charles C. Joseph Peter J. Grey, on behalf of Sleizer as Amici Curiae Respondent. E. Sheehan and Larry Opinion habeas a writ of an order
BURKE, J. from The Peopleappeal granting which, M. Walker’s 1947 effect, Erwin in its sets aside *7 at and two counts murder convictions on one count of first degree Code, the reasons hereinafter 1506.) For Pen. (See murder. § tempted but peti be reversed the order must we concluded that stated have parole for possibility without life sentence of tioner’s imprisonment Since the italicized words. deletion of be modified by murder should Court, reached several claims were not the Solano by case is to that of those claims. remanded court for consideration Background Facts
In 1947 an one count of indictment was filed with charging petitioner counsel, and two by murder counts of murder. While attempted represented entered reason of by insanity, thereby of not single plea guilty Code, 1016). He a “the waived (see Pen. admitting charged” § offense[s] and been sane was found the Los Court to have jury Angeles Superior the time of'the crimes. In his counsel at petitioner’s presence stipulated be used determine "the evidence at the trial could sanity, degree of, for, murder, was and and no additional evidence punishment pre- and sented on those The court the murder was first degree issues. found fixed the death. penalty
On petitioner’s this court affirmed the appeal murder conviction and Walker, death (People penalty 6]), 250 [201 and certiorari was (336 denied in 1949 U.S. 940 L.Ed. 69 S.Ct. 744]). The murder were convictions and attempted became appealed final in 1947.
Following arrival in was found prison psychia- trist to be a paranoid In on the date set schizophrenic. April execution, insane, found him to be and his psychiatrists exe- cution was next stayed. The month he insane was adjudicated com- mitted to a mental where he electric hospital, underwent shock treatments. held,
In 1961 another sanity he was sane. hearing adjudicated That same year the Governor commuted death sentence to life without imprisonment possibility parole. court,
In filed a habeas and it this petition was denied without a Thereafter filed a similar in the hearing. Solano County Court relief on the that: Superior seeking grounds
(1) statements he made to the were Incriminating involuntary, police and these were statements and “used introduced into evidence improperly ... to force his plea”;
(2) His statements were court-appointed psychiatrists erroneously admitted; of,
(3) The followed in procedure determining dgeree penalty for, invalid; the murder was
(4) He (a) was not of at trial and afforded effective assistance counsel (b) on appeal;
(5) He was denied due to reasons the process relating specified rule; Wells-Gorshen
(6) The Los Court erred in not a Penal Code Angeles Superior ordering section 1368 time and at the of sanity he was both hearing; incompetent (a) the trial (b) the appeal. issue this additional was
Subsequently during proceeding following raised:
(7)
People
(1972)
Whether the decision in
v. Anderson
Following evidentiary large part hearing, mental condition various testimony regarding psychiatric petitioner’s times, ruled in favor on County Solano Court Superior petitioner’s decide the issues. The (1) (4); the court did not remaining grounds through (In and this is from that order. 1972 petitioner writ was granted, appeal was released bail on pending appeal.) Walker, supra, in People trial evidence at the is summarized
The in It brief: be here detail. appears and need not set forth to the South and was sent service in 1941 military Petitioner entered in advance to a radar engaged repair Pacific where he was assigned group began United States in his return to the areas. invasion Upon asserting of sentence petitioner’s has been filed 1Also an curiae brief amicus punishment cruel unusual possibility parole is and/or imprisonment life without Amends.; I, Const., Const., 6), equal (U.S. § denies him art. 8th & 14th Cal. Amend.; I, 21) Const., Const., (U.S. §§ & Cal. art. protection of the 14th laws because the condition is state possibility parole” the “without invalid and that (see relating power former provision commutation the Governor’s constitutional placed VII, Const.), required a condition properly interpreted, § art. Cal. standards, judged by contemporary condition on commutation reasonable and be unnecessary these assertions to reach sentence is unreasonable. It is Anderson, supra, since, see, as we shall under possibility parole” sentence should be modified the deletion of “without restriction on his sentence. *9 taken sale of series of In 1946 an equipment burglaries. April attempted Officers identity. a clue to his in one of the burglaries gave police shot his way but he Forbes and to arrest Johnson petitioner, attempted out, which he was charged. murders with thus committing attempted an to Roosevelt during attempt In June he shot and killed Officer other he committed a of a market. After the murder burglary perpetrate robberies, arrested in crimes, and was eventually a series of including December 1946. 255, Walker, 250, states “Whether
People supra, 33 Cal.2d [peti- idea of society of crime with an making embarked on his career tioner] claims, it, he him did as his or whether he suffering, support pay (id., court,” this court aberration, the trial under an an issue for was the trial court’s 257) finding concluded that the evidence supported p. of sanity. Allegedly Involuntary
1. Petitioner’s
Statements to the Police made to The that statements petitioner alleged incriminating erroneously statements were were and that these involuntary police “used ... to force at his trial and sanity introduced into evidence to the admission of At was made trial no objection plea.” was and no involuntary, argument statements on the that were they ground Walker, (People v. involuntary. that the were made on statements appeal was raised for the matter 259.) far as supra, 33 Cal.2d So appears denied, we and it that time in the habeas first 1970 in corpus petition was raised in the instant again proceeding.
The rule is that “habeas cannot serve as a substi general and, tute for in the absence of circumstances appeal, constituting special an excuse for failure to that the writ will not lie where employ remedy, been, not, claimed errors could have but a were raised timely upon Dixon, from a (In of conviction.” re appeal judgment 41 Cal.2d Morrison, 513]; 442, 443, P.2d accord 4 Cal.3d fn. 1 [264 Black, 663]; In re P.2d 66 Cal.2d 886-887 Cal.Rptr. 293]; Shipp, In re 551-553 Cal.Rptr. excuse the 571].) Here sought alia, failure to raise the above matter on inter that by alleging, appeal was then made no ex The Solano Court County “incompetent.” Superior that with does it such nor press finding allegation, appear respect a can be That court declared that “The contention finding implied. does not the entire
[petitioner] throughout proceeding incompetent decision,” be unreasonable to assume that and it would now require at the time of his court decided whether appeal. incompetent *10 disclose It the that “a convicted defendant must fully is also rule the which he the of” facts his reasons for in upon delaying presentation Wells, (In re have a final overturned. would judgment 553; 613]; supra, 62 Cal.2d Shipp, In re Swain, 793].) argue The In re relief. in delay seeking the long failed to satisfactorily explain petitioner the delay that the matter of asserts, do not deny, Petitioner and the People sought for habeas corpus was not in the court below. The argued alia, insane from the inter delay to by alleging, petitioner explain the instant his until pro had no counsel following appeal Su County the law. The and was without of Solano ceeding, knowledge matters, it nor does on these appear Court made no findings perior express that such can be findings implied. fail- excused circumstances petitioner’s
Even if we assume that special excuse there is an and that adequate ure to his remedy employ appeal have he seeks to the facts which for his in the delay upon presentation see, overturned, claim that his statements as we shall his his conviction on this were is not involuntary appeal. the supportable police Court Solano County its habeas Superior In order granting corpus testi- by the revealed that “The combination of circumstances stated in part involuntary to the mony police clearly murder point trial] [at added.) (Italics statements.” incriminating character of [petitioner’s] statements surrounding The evidence of circumstances petitioner’s as follows: be summarized may of the testimony as revealed by police, a.m. on December and testified: Around 2 Wynn Officers Donahue Hannon, Rombeau, went they and Officers Baughn accompanied and when to the had a They key to the apartment, petitioner’s apartment. As the door inside. moving it in the heard someone they door they put hand. Donahue a in Donahue saw submachine gun petitioner’s opened,2 in an A ensued the floor. struggle and fell to they jumped petitioner, struck petitioner Wynn During struggle to get gun. attempt petitioner’s to bother seemed peti- Neither blow the head with a butt. gun twice ón then Wynn to twist it. and tioner, trying his gun who was still grasping the shoulder. Donahue twice, was hit in shot petitioner petitioner As arms, shoulders. held and Wynn held _ Rombeau claim, he now nor does allege petition, the habeas did not 2Petitioner entry police was unlawful. that the over, said, now, Do a job.” have me. you good “All right, rolled him they Patrolman?” did kill “Why you Highway asked Donahue shoot the two asked “Did you “he had to.” When and petitioner replied saw that The officers answered “Yes.” Hollywood?” officers in him comfortable to make badly bleeding attempted became never under his head. him and Petitioner covering pillow putting ambulance, less than which arrived in called The officers an unconscious. the officers the told voluntarily this During 10 minutes. period petitioner the officers found loaded of various in addition to weapons location guns, apartment. *11 to the in hospital Officer testified: He petitioner Rombeau accompanied ambulance, asked about rational. Rombeau and the petitioner appeared to Rombeau say. said he had nothing and the crimes petitioner question bad, said, like are in shape “I ‘It looks to me you pretty testified: further it, all so to do is to . . . tell us about think the smart . . . and I thing are in issue will be closed if serious you pretty something happens, said bad not live until to you may you get hospital.’ shape, [Petitioner] on, while have to as we arrived at the . . . T Later say.’ hospital, nothing . he asked for some on the table examined . . being physician, to kill He said he was in and he wanted something pain. opiates. pain I asked if he wouldn’t relate all the circumstances regarding him again detec- two of . . . Roosevelt and the of our shooting Hollywood killing time, out of this and not come you may tives. I said ‘Now is because your ‘Well,’ said, is noth- it looks like there clear it ‘all right, should you up.’ do, went in detail just will At that time he telling else to so I tell you.’ ing killed . . and . . . how he had . . . Forbes and Johnson how he shot . Roosevelt.” 21, 1946, he that on the of December
Officer testified Wynn morning which a at the after for about an hour hospital, talked with petitioner the conversation was re- Bechtel came and named stenographic reporter Peti- A and were also then and transcribed. doctor nurse present. peated that was.” Bechtel told about where this was freely tioner them “very [and] In the conversation testified to the contents of the conversation. petitioner an Officer Roosevelt during that he murdered made statements indicating committed also admitted having to commit a burglary; petitioner attempt and said that and various robberies and burglaries, murders attempted and made. voluntarily his statements were freely talked with Wynn testified: On December further Wynn
Officer made described admissions. and petitioner again hospital, petitioner Officer Forbes testified that around with December he talked at the petitioner admissions made to hospital, various him. petitioner Officer 30, 1946, further Wynn testified: On was told Wynn December to be Peti- petitioner transferred from the to ready jail. hospital tioner “kept [Wynn] and asked him to some from asking get opiates” so, the doctor. tried Wynn to do but the doctor said “No.” Petitioner said he was “a little weak” but did not about discomfort. En route any complain to jail Wynn talked. said he would like to take movies Wynn petitioner of a reenactment of the and asked if had Roosevelt killing petitioner any objection, said he would like to contact petitioner attorney first and card. tried to gave Wynn attorney Wynn unsuccessfully Girard’s reach Girard. then asked if Wynn had any objection going Griffith Park and Soledad to recover articles there that Canyon had mentioned and “he didn’t see wrong replied anything that.” and several officers to those locations Wynn, petitioner, proceeded and recovered this objects. made further specified During period petitioner cold, At statements. one incriminating point petitioner complained being and the officer his overcoat around thereupon placed petitioner.
The record further shows that at the time of the arrest was petitioner well about 28. He had one of and was above in intel year college average He testified at at the trial and made no claim that of length any ligence. his statements was involuntary.3 statements “as of a constitutional matter admissibility
The
the
case law
the due
...
contemporary
elaborating
governed
446,
(Procunier Atchley,
of voluntariness.”
v.
400 U.S.
standards
process
4
524, 530,
485].)
“A
is in
453
L.Ed.2d
S.Ct.
confession
91
[27
”
is
intellect and a free will.’
unless it
‘the
of a rational
voluntary
product
3At the trial
testified that when he made the statement on December
21,
“drugged
pain”
he was
. . . with codine
and in . . .
but
that he was
[sic]
mentally,
fuzzy”
he
“rational.” He thereafter
stated that he was “confused
when
giving
description at
made the December 21 statement but admitted
a detailed
regarding
being
nitroglycerine. Subsequently
the preparation
upon
time
asked
you
questioned by
you
were
the officers in the
were
were
hospital
“When
you
after
shot
was,
your
replied
yes,
clear in
mind then?” he
“I believe I
as a whole.” He
you
your
was also asked
defense counsel “And at all
out of
times
even went
way to
respect
assist
officers with
to the various incidents and . . . transactions
involved,
“Yes,
replied
they
isn’t that true?” and he
I divulged much which
had no
of;
knowledge
cooperated
every way
I
I could.”
Arizona,
recognizes,
4As
the rules in Miranda v.
384
436 [16
U.S.
694,
1602,
974],
Illinois,
L.Ed.2d
86 S.Ct.
10 A.L.R.3d
Escobedo v.
777 633], 529, Cameron, 487, P.2d 439 68 (In Cal.Rptr. re Cal.2d 498 [67 249, 242, Alabama, 199, L.Ed.2d U.S. 208 Blackburn v. 361 [4 quoting a confession is whether 274].) product In determining 80 S.Ct. surround will, the circumstances totality and a free intellect
rational Pate, U.S. v. 367 (Reck account. be taken into must the confession ing Sanchez, 1541]; 70 948, 953, People v. 433, 81 S.Ct. 440 L.Ed.2d [6 642, 74].) 562, 451 P.2d 572 Cal.Rptr. Cal.2d [75 not im does a defendant force in arresting use of reasonable
The
or after the
him during
made by
of a statement
voluntariness
pair
Carter,
549, 561-562
56 Cal.2d
(see,
[15
arrest
e.g.,
Burwell,
16,
P.2d
477];
44 Cal.2d
30-31
645,
People v.
[279
1265,
788)]; People v.
den.,
(99 L.Ed.
76 S.Ct.
U.S. 936
349
[cert.
744]
Hill,
216 N.E.2d
N.Y.S.2d
591] [cert.
N.Y.2d 185
17
1231),
(17
U.S. 875
den.,
(16 L.Ed.2d
86 S.Ct.
385
Amaya, 40 Cal.2d 575.) § en Rombeau made
As heretofore route to Officer appears, hospital *13 a was “in bad statement to indicating shape” petitioner petitioner pretty not live until he reached and that “the smart . . . might hospital to do was to tell the “about it” so that the issue would be thing” police closed state if Even Rombeau’s something assuming happened. did not
ments condition constituted this regarding deception, petitioner’s render since the admissions inadmissible petitioner’s subsequent deception (Peo was not of a an untrue to statement. type reasonably likely procure 160, dism., ple Atchley, v. 53 Cal.2d 366 U.S. 171 [346 764] [cert. Jersey, (Johnson long v. New 384 came final before those decisions were rendered. Rollins, 681, 1772]; 882, People 691 U.S. 719 L.Ed.2d 86 v. 65 Cal.2d [16 S.Ct. 368, 293, 221]; Lopez, Cal.Rptr. re [42 423 P.2d In 372 [56 188, 380].) 398 P.2d 5Although regarding in petitioner’s testimony at his trial his arrest differed some gun respects (e.g., from a his hand that of the officers whether had entered) County Superior appears when the officers Solano to have relied Court on officers’ version.
778 (27 233, 1051); 446 L.Ed.2d see also 400 U.S. ( 6 L.Ed.2d 81 S.Ct. 207 485)]; Arguello, v. Cal. cf. 91 S.Ct. Witkin, 202]; (2d 1966) Cal. Evidence ed. see pp. Rptr. 446-448.) his to render
Nor did “I have say” response nothing petitioner’s Cupp, U.S. admissions inadmissible. ensuing (Compare Frazier 684, 692-693, 1420].) And it does 738-739 L.Ed.2d S.Ct. although constitutional rights whether was informed of his appear statements, not in itself before he made the various failure would such any be coercive but would to the evidence of any be go only weight given (Procunier Atchley, supra, actual coercion. U.S. 524, 530].)
L.Ed.2d conclude, We to the of the Solano County contrary holding Superior Court, the do not show combination of circumstances revealed police statements were involuntary.
The Solano Court also found that “while [petitioner’s] for counsel were first in court requests ignored, the time for his appearance and his to 24 while delayed, for 17 arraignment postponed days he was for the state- questioned by incriminating police purpose getting ments.” The record shows: Petitioner was taken following to the hospital 20, 1946, his arrest on December and was released from the hospital 30, 1946, 3, 1947, December On he was transportation jail. January indicted, and was set for On that date arraignment 1947. January he without his appeared the matter was continued to attorney, January 14, 1947, at which time with his and was appeared arraigned. attorney All statements to were made on or before December police It 1946. does not that “his for counsel were appear requests ignored.” 7, 1947, was brought was the first date that January
Assuming court, Penal Code section 8256 into more than specified period a he was before magistrate. his arrest before brought elapsed following section to However, of that would be an unreasonable it application until it be taken before that a defendant magistrate require hospitalized *14 Lane, v. 56 (People to his health was to do so without jeopardy possible 801, 57]), 773, and most of petitioner’s 781 Cal.Rptr. [16 In made his release from the hospital. any statements were before be taken Code defendant must in all cases provides: 6Penal section 825 “The and, event, days any two magistrate unnecessary delay, in within before the without arrest, excluding Sundays holidays after his . . . .” in determin factor to be considered event in is but one delay arraignment Kendrick, 71, (People whether a is v. 56 Cal.2d voluntary. confession ing Court, 13]; Superior v. 46 Cal.2d Rogers see P.2d [14 States, 929].) v. United P.2d The rule of McNabb 608], dur U.S. 332 L.Ed. that confession obtained S.Ct. any is been an detention facto inadmissible has not ing illegal ipso adopted Bashor, Rogers (People 255]; California. 765 Court, Witkin, 1966), Superior supra, (2d see Cal. Evidence ed. pp. 454-455.) In in com our any arraignment, opinion delay above, with the other set did not render bination circumstances forth statements involuntary. (1) that when also recited order Court’s County
The Solano Superior butt “so with a gun the head beaten on was arrested he was petitioner broken”; coun- (2) that he was “requested handle of the gun hard that the route to the his arrest or en hospital); at the scene of sel” (apparently talked”; and he withheld until (3) medication was that the hospital “[a]t made the 45- before duration of the (4) interrogation petitioner that the “48 Bechtel) was transcribed by the statement statement (apparently page of these evidence any contains no substantial supporting hours.” The record matters.7 when he made asserts that further
In his brief on appeal petitioner he In his by insanity.” his intellect was “impaired statements acute from “suffering that was similarly alleged “incompetent” At he made the statements. when paranoid schizophrenia” that Court found petitioner trial the Los murder Angeles petitioner twice on head Wynn’s testimony that he hit appears 7It from Officer butt, not show gun Wynn officers does testimony with a but the and the other August gun An was broken.” that 25, hit “so that the handle of the petitioner was hard Hospital at State by while confined Mendocino petitioner statement made words, self-serving extrajudi a supporting quoted but such contains a statement adjudicated being after hospital at a mental cial statement made while confined regarded as of the matter asserted. proof insane cannot be substantial at of his arrest requested contrary There counsel the scene petitioner is no evidence that hearing when hospital, or en route to the the habeas to the you attorney?” answered your “Did at the arrest seek an asked time “No.” any hospital Nor does the record contain medication was evidence “[at] heretofore [petitioner] appears withheld until talked.” It from Officer Rombeau’s being quoted testimony by physician hospital that while at the" on- De- examined 20, 1946, petitioner requested opiates cember nished him does not but were fur- opiates, whether or not appear.. There is no evidence supporting fourth matter set forth above. As recited show, interrogated day facts on but the officers December duration questioning morning was not established. On the of December questioned by Wynn during for an which hour he made the incriminat- ing repeated statements that were thereafter and transcribed Bechtel. *15 780 1946) also (in committed and June the crimes
was sane when he April this court 1947). On (June . . sane” appeal that he “is now . commented that conclusion for the record “affords abundant support declared that the Walker, supra, 33 (People he was sane crimes].” time [at testi 257.) conflicting psychiatric Cal.2d At habeas hearing when he condition mental was introduced mony relating petitioner’s or of an 1946). express In the absence (December made the statements Court we cannot determination the Solano County Superior by implied when he made the statements. was insane hold that as a matter of law petitioner (C 902, 450 Kanos, People v. Cal.2d 385 Cal.Rptr. [74 f. 485, 423 278]; People Henry, P.2d Cal.Rptr. on 557].) finding made no express P.2d The Solano Court County Superior its be The court specified nor can such a subject, implied. finding and those involuntary, order it concluded statements were why court, connec Also the reasons do not include that he was then insane. issues, mental tion with other it was not deciding indicated trial, be unreasonable to state at the times of the crimes or and it would an inter assume the court decided whether was insane at petitioner time, i.e., when made the statements. vening petitioner told his
In his brief on asserts that he “was also appeal petitioner would be if he at the scene of the family didn’t talk jailed [apparently arrest],” and to an exhibit statement points consisting 25, 1949, The Solano matter. August containing quoted Court, however, no that such a state made express finding ment was made to can such a be Peti finding implied. nor petitioner, tioner’s he was at Mendo statement was made while confined self-serving cino State after and is not substantial insane being adjudicated Hospital of the fact asserted. proof
2. Petitioner’s Statements to Court-Appointed. Psychiatrists
At the
trial
sanity
testified
in
court-appointed psychiatrists
concerning
statements
criminating
to them. The
Solano County Superior
that,
Court stated
since the
right
counsel at interviews by court-appointe
dpsychiatrists was not established
Spencer,
until In re
781 which final before the date which have become upon judgments upon 18, United States Court rendered that decision [May Supreme 1964] (In 404, Lopez, re In re Spencer, supra, . . . .” from 62 p. quoting 368, 188, 380].) Spencer A fortiori 372 398 P.2d Cal.Rptr. [42 does not case which became final in 1949.8 apply Degree Determining
3. Claim That Procedure Followed in Penalty Was Invalid
The Solano order Court’s recites: “Before sanity trial the was advised not that that would be his only hearing on . .. and he did not in the degree penalty, join personally stipula- tion to Moreover, submit those on the record. since the questions charge murder, with no there was no in the specification degree, warning itself of the charge that it was first theory murder because of the degree murder felony doctrine.”
Even if was not advised before the trial “that sanity that would be his on . . . only hearing that mani degree penalty,” would festly render itself invalid. by The matter procedure Walker, of the stipulation considered on his (People supra, v. appeal 250, 33 Cal.2d 266), and habeas not serve as a corpus ordinarily may Waltreus, (In 218, second re 9, 62 Cal.2d appeal. 225 397 Cal.Rptr. [42 1001].) P.2d
An short form accusatory murder pleading charging pre scribed Penal Code 952, sections 951 and without the degree specifying murder, an accused of a murder adequately charge first apprises degree Mosher, (People 379, 379, 659]; v. 1 Cal.3d 399 461 P.2d Cal.Rptr. [82 People Terry, 985]), v. 57 Cal.2d 555 Cal.Rptr. and it has been be long settled under such a the accused may charge convicted of first was com murder on the the murder degree theory that mitted in the in Penal Code of one of the felonies perpetration specified Golston, (People section 189 539 [25 51]; Witt, 928]). 170 Cal. P. 107-108 [148 Massachusetts, 35], 5, 7, cited 8Arsenault v. 89 S.Ct. L.Ed.2d U.S. gave petitioner, contrary is not to the above conclusion. Arsenault retroactive 1050], Maryland, effect to White v. which 83 S.Ct. U.S. L.Ed.2d right hearing guilty plea concerned the is preliminary to counsel at a at which a entered. Trial Counsel at *17 Denied Petitioner Was Claim That 4. Effective Appeal and on at Trial9
a. Counsel “had a found that Court petitioner The Solano which was not available presented defense crucial capacity] [diminished as the known commonly concept, his behalf.” The diminished capacity Cal. Morse, Cal.2d 731 70 (see People [76 rule Wells-Gorshen Wells, People v. in 607]), first fully recognized P.2d was 452 Rptr. People v. (See in 53], which was filed 1949. Cal.2d 330 Williams, 37]; People Hoxie, Cal.Rptr. 911 [61 Cal.App.2d 743]; 14 Stan.L.Rev. 838, 841-842 Cal.Rptr. Cal.App.2d counsel at trial mani in his 73-74.) trial ended Since peititioner’s failure to any be as constitutionally inadequate cannot festly regarded established in Wells. the rule subsequently anticipate findings relating Court also made certain The County Solano Superior trial, are not claim but the findings of ineffective counsel to petitioner’s in the habeas The facts found were the record.10 by alleged supported admitted the or evidence. by but were not proven corpus petition further found “petitioner The Court saw Solano County Superior trial, 25 minutes of in all before the no than 40 minutes more attorney There was 5 minutes only were consumed in which appearances. court uncle testified petitioner at trial. Petitioner’s 9Attorney represented Fred Girard hearing upon his recommendation at the habeas that it was “a considered Girard represent petitioner, that the uncle Girard to father retained had been petitioner’s trial Girard very lawyer,” and that before excellent criminal the defender’s office. deputy attorney public had been in previously a district unsupported findings are: 10The facts, (a) as the investigation of the such independent Defense counsel no “made incriminating taken . . . .” manner which the statements were single (b) (1) plea a the effect of Defense counsel failed to advise issue; (2) guilt guilty insanity upon “possible the eventual of not reason of the waiver; (4) (3) penalty”; jury the that there would possibility the effect of a matters, only hearing. may response be noted that in be to that the death one As to the first two it jury, he at the time waived a he stated that understood examination single charged plea admitted commission of the offenses and that the might penalty imposed. be (c) arranged “independent” psychiatric examinations. counsel for no Defense record, finding ex- only unsupported by psychiatrists Not but the who is this unanimity court-appointed before trial were and in view of the amined of their condition, hardly regarding defense counsel opinions mental arrange psy- did another could be faulted even if it be assumed he to have petitioner. chiatrist examine (d) during Petitioner denied access to counsel until sometime week which appearance followed his first in court. court based this on similar finding consultation.” The private presumably (In However, is deemed denied. allegation allegation petition. Saunders, 921].) re 1047-1048
The evidence on matter at the hearing only peti presented tioner’s asked often and for how met own When how testimony. long trial, with his recall before “I two times that attorney petitioner replied seemed, sawhe me for about five minutes a it before just piece, I (Italics added.) trial think he saw me in the in the Peti anteroom court.” tioner testified further that before the trial his inter attorney’s secretary *18 him about viewed for 10 minutes. Since over had since years 20 elapsed the trial and that electric during underwent shock treat period petitioner ments, amnesia, which cause the evidence does not constitute foregoing substantial that the only saw for the proof attorney limited times testified to by petitioner.
In addition the to defense counsel’s failure to petition pointed seek a on at hearing the time of trial and petitioner’s competence to object statements, to the admission of petitioner’s incriminating that defense failed alleged counsel to the death argue against With penalty. to the matter, latter it is respect from the unclear record whether alle correct, is is, but gation that it does assuming it not establish that petitioner had constitutionally counsel at trial. Nor do the other inadequate foregoing asserted failures so establish. A for a on request hearing competence Davis, re (In 798, 178, unnecessary. 8 Cal.3d 808 505 [106 Cal.Rptr. 1018]; Westbrook, People P.2d 197, v. 809, 62 Cal.2d 203 [41 Cal.Rptr. 545]; P.2d People Ying, 18, v. Ah 42 Cal. 21.) Other matters alleged petition regarding trial counsel petitioner’s either were not or do not proven establish that had constitu- tionally counsel trial. inadequate
b. Counsel Appeal11 on Wells,
Two People 330, after days supra, v. 33 Cal.2d a re- filed Walker, was denied on hearing v. (People supra, appeal.
Cal.2d 250.) The Solano Court stated that the implica- tions of Wells were of “much “immediately” subject discussion” that its “Why to Walker’s case was not application considered [presumably appellate is . . . .” purely speculative counsel] Although testimony indicated when that Wells was filed it well might have consider- provoked Girard, represented 11Petitioner was initially appeal solely by attorney on his Fred granted but a rehearing was on that appeal attorney also rep Morris Lavine resented rehearing. on the discussion, able did within two days no evidence was that it so presented In our after it was filed or that it was then even known. widely con counsel on cannot be held to have been opinion petitioner’s appeal him stitutionally within to inadequate failing two-day period apprise Wells, People self of v. this supra, 33 Cal. somehow and to advise 2d court of he believed it have case. to any applicability might Moreover, matters not be trial court cannot considered presented Merriam, on (People v. appeal 66 Cal.2d 396-397 Cal.Rptr. 161]; Reeves, 64 Cal.2d Cal.Rptr. 35]; People 415 P.2d Arguello, 377]), and the contain no evidence transcripts appeal peti
tioner at the time of murder was under a mental disability operating amounting legal him insanity prevented from having requisite murder;12 intent for first nor degree does it that the court excluded appear such evidence at any the trial. defense found that Court further Solano Superior
The County *19 the . . . during with . . . ap counsel “did not communicate that Even if it be assumed nor “seek attention for him.” medical peal” any record, are insufficient are the by they these matters supported adequately counsel two retained in themselves to establish that privately on were constitutionally inadequate. appeal notice any
The further that “Counsel failed to appeals petition alleged final.” two murder to become the convictions permitted attempted However, two attorneys it was not or that either of the alleged, proven, retained to to was also retained represent represent petitioner appeal him in an from the convictions. murder appeal attempted Asserted
5. Denial Due Process Reasons for
Relating to Wells-Gorshen Rule The evidence of asserted that “The court refused to consider diminished in So far as Solano capacity determining degree.” appears Court did not reach this The is made County Superior claim. claim again on the instant that denied contends such refusal him appeal, petitioner- due to murder” According first process. petitioner, degree finding “[i]n the court “I commented the fact that the defendant has what recognize be may classified as an unstable he be disturbed that may personality; I but think it would be emotionally, true that most who choose persons Peti proceeding. filed in this at murder trial were not with us exhibits 12The at the time of the murder any of those exhibits show that that tioner makes no claim disability. such a operating he under was I believe and disturbed. crime are unstable a life of violent for themselves comment, how deliberations.” The cannot enter into our quoted that that ever, penalty with determining made the court connection was by Moreover, even had court of the murder. —not degree an of the murder time it determined the degree the comment made without more are insufficient instability and emotional unstable personality defect that to harbored a mental illness or prevented show Other murder. from mental state for first having degree him the requisite his asser references likewise do not transcript given by support tion that diminished capacity the court “refused to consider evidence of due Petitioner’s that he was denied determining degree.” argument process such refusal thus cannot be sustained. when Sections due was “denied that he process also argues Petitioner so that the State Code were applied the Penal and 1026 of that he not disprove, and he was permitted prove, was required asserts murder.”13 He mind the state of required of forming capable could have made' was no he plea of his trial that at the time “[t]here that even meaning state in issue [presumably his mental would have placed re- testimony could not have offered expert had he not guilty pleaded illness],” that reme- due to mental “[t]his diminished garding capacity Wells, he cannot be and that supra, 33 Cal.2d People v. died by” Wells, after his trial but before which was decided denied the benefit but so were in his petition final. assertions became Similar judgment Court. were not reached Solano far as appears *20 Wells, 343-357, 330, that on the trial held supra, v. 33 Cal.2d People trial, 1016, enumerated read at the time of section as it 13Penal Code entered; guilty guilty” and “not they “not pleas may of that be included five kinds by plead does not defendant who insanity.” section then declared “A reason of The have been sane insanity conclusively presumed be to guilty by not of shall reason charged pleads who A defendant at the of the commission of the offense .... time thereby admits guilty by insanity, also not pleading not of without guilty, reason 1927, 677, 1, 1148.) (Stats. charged.” p. § ch. the of the offense commission read, 1020, tending “All of fact provided: Penal Code section as it then matters acquittal, jeopardy, to establish a defense other than conviction or once in [former given guilty by insanity] may plea . . be under the or not reason of . in evidence (Stats. 1927, 677, 3, 1149.) guilty.” p. § not of ch. read, 1026, pleads a provided: Penal Code section as it then “When defendant not joins guilty by insanity, pleas, it plea reason of and also with another or shall only, plea pleas first be tried as if he had entered such other he shall be and in such trial or conclusively presumed the offense al- to have been sane at the time is leged jury guilty, to have been committed. If the find defendant or if the shall the pleads only guilty by insanity, question defendant not reason of then the whether the defendant promptly or be was sane insane the time the offense was committed shall finding tried .... If verdict the or be that the defendant was sane at committed, time offense was shall pro- court sentence defendant as (Stats. 1935, by 1075.) vided § law.” ch. p. of the raised a of a a which issues not of crime by charge plea guilty state, of a mental evidence that because requires proof specific competent of mental defendant did not abnormality amounting insanity legal possess essential mental state is admissible. Wells out specific pointed (at 348) Code, that of “the conclusive Pen. p. sanity presumption [in 1016 & con- sanity, is a conclusive of it is not a §§ presumption 1026] legal clusive capacity to commit crime.” Language of presumption earlier cases was insofar be as it deemed inconsistent might disapproved with the views in Wells. expressed Wells,
It has been People supra, said that before v. 33 Cal.2d trial excluded judges from the trial consistently testimony psychiatric guilt a the defendant’s theory by any testimony regarding physician mental state was to the issue of Sections 1016 pertinent only insanity. in- provided a conclusive and trial sanity, judges presumption ferred “there was an conclusive that the defendant equally presumption intent, the mental to have malice other possessed capacity or aforethought Schwartz, (See elements mens required rea.” Goldstein & Donnelly, Criminal (1962) Law Diamond.) note Bernard p.
Here, Wells, People unlike v. supra, 33 did not Cal.2d enter a not but rather guilty of not reason guilty plea single plea which, insanity, the basic act if not commission of “thereby admitting Code, under the offense qualified plea, (Pen. constitutes the special charged. 1016.)” (See People Wolff, § 959].) Whether different have had would been entered plea
Wells been decided before trial is even But highly speculative. if petitioner have might Wells had been decided before pleaded differently trial, it does not necessarily follow that he has been denied due process. Wells, 330, 351,
Although supra, declared “To go beyond rule there evidence . excluding [the . . might enunciated] transcend limits,” constitutional it did not decide the matter.14 A number *21 Edmonds, J., J., however, by 14A by Traynor, dissent concurred concluded tending exclusion of prove requisite evidence to the defendant lacked the crim Wells, (People supra, inal intent process. constitutes a denial due v. 33 Cal.2d 330, 358-359.) Wells, brought argued In corpus proceeding a habeas later he that the deprived exclusion of evidence of his state of due procedural mind him process by denying right present argu to majority rejected The his defense. ment, stating ruling merely; “The trial court’s law was an error of was no there defense, only rejection refusal to allow present Wells to a a but of some evidence concerning authority the defense. authority, Petitioner cites no and we find neither reason, suggests nor hearing which requirement process of due satis is not fied this appraisal court’s of the erroneously effect of the excluded evidence.” Wells, (In re 35 947].) 894 P.2d [221
787 (see diminished concept have not capacity jurisdictions adopted tried in such a 1228), jurisdiction and with to a case 12 A.L.R.3d respect the defend- it held that the concerning was exclusion of expert testimony not was insanity diminished not amounting legal ant’s alleged capacity 184, 196-191.) Eyman, a F.2d (Narten violation of due v. process. however, such further, need not whether the exclusion of
We
explore
was
denied due
such evidence
not excluded.
because here
testimony
process
Rather
and his
to enter without the
selected
attorney
petitioner
plea
Wells,
People
benefit of
de
supra,
Petitioner does and could not on the rely properly principle Zerbe, in In re 60 Cal.2d Cal.Rptr.
A.L.R.3d Under Zerbe “a defendant is entitled to habeas 840]. if there is no material as to the facts to his conviction and dispute relating if it that the statute under appears was convicted did not which prohibit (See his conduct.” In re Crumpton, also 467-468 Cal. 74]; Mutch, 4,Cal.3d Rptr.
721,
6. Claims to Petitioner’s
During Appeal Trial and on Court erred The that the Los County asserted Angeles Superior sanity to hold a section failing hearing Penal Code and on and that he was at the time of his trial incompetent appeal.
The “The contention that [peti- Solano Court stated: does not now the entire incompetent throughout proceedings tioner] did enter- a court decision. it that the require Although appears probably a tain doubt should have ordered as to competency, [petitioner’s] retried, no is it will make on that if the matter hearing separate question, difference now was . . . .” what his condition then
788 . Angeles Whether the Los Superior Failing
a Court Erred in to Order Hearing
a Penal Code
Sanity
Section
on Petitioner’s
it
From
remarks
Solano
Su
above-quoted
County
appears
Court did not rule on
claim that
perior
the Los Angeles
petitioner’s
Supe
rior Court erred in
to order a Penal Code section 1368
on
failing
hearing
That court should
sanity.
consider the issues relevant to that
claim
remand. The
upon
have not briefed on
several of those
parties
appeal
issues,
Robinson,
Pate
whether
942]).
b. Claim That Incompetent During Petitioner Was the Trial The Los did Angeles Court not order a Code section Penal Superior on hearing but conclusion of the trial on petitioner’s sanity his of not commented, reason of plea “I convinced guilty by am insanity . . . that the defendant was at the time of the and is now [alleged crimes] sane.” At the legally habeas testi- hearing conflicting psychiatric mony trial, was introduced and, his regarding as hereto- sanity during fore the Solano appears, Court indicated it was not de- ciding whether question. or not the claim Accordingly, may properly be made in this we cannot hold that it warrants relief. proceeding',
c. Claim That Petitioner Incompetent Was Appeal on The Solano Court did County not reach a claim Superior by petitioner that he was that such “incompetent” during appeal incompetence denied him an effective and due The issues to the appeal process. relating claim have not been briefed on that the in except appeal People argue that the general Solano Court erred County Superior considering in the absence of a (see, excuse for the satisfactory long delay e.g., Swain, In re supra, 302). stated, As heretofore asserts, and the do not that the matter of the was not deny, delay argued Also, the court below. if the claim of incompetency appeal be may in this properly made it Under factual issue. proceeding, presents the circumstances we have not reached on the issues to the appeal relating claim. *23 Anderson, 628, People supra, Whether v.
7. Cal.3d Petitioner’s Case Affects Anderson, supra,
It has been 6 Cal.3d People that under v. suggested 628, was death sentence for the murder was invalid when it and authorized was there- imposed only for that crime legally penalty Code, fore life (see 190), Pen. action imprisonment that Governor’s § thus increased the the condition “without by adding punishment possibility of may be considered a commutation of the parole” reasonably sentence VII, within the 1, former state of article section of our meaning Constitution, and that therefore should be deemed have been a term serving of life with of from the imprisonment possibility parole time of his arrival in prison 1947. a of this is based on
The suggestion misconception foregoing death Anderson concluded that the court’s in Anderson. penalty position Const., I, 6), and that (Cal. is both art. cruel and unusual § punishment case, in that as it for the death insofar judgment penalty, provided (the should therefore be modified for life only to provide imprisonment alternative for crime there in Legislature punishment provided Code, (see 190.1)). first murder Pen. namely, question, degree §§ retroactive,”15 Anderson but the declared that decision is “today’s fully statement been does not mean that the death has quoted always penalty unconstitutional, Ander as is from the this court in reasoning of apparent son. It (at 650) “Judged by contemporary was there reasoned that stand p. decency, ards cruel” and is that such punishment capital impermissibly now, “is literally” in of the an unusual view world punishment punishment wide trend toward the and the fact that the abolition of capital punishment death sentence is carried California and even more rarely rarely imposed (Italics out. added.)
At the time the death
imposed
penalty
(see
People
was constitutional for first
murder
v.
penalty
e.g.,
degree
Thomas,
[cert,
233]
den.,
Bashor,
(19
140)]; People
P. and the commutation to life without possibility parole VII, Const.). within the (see Governor’s former art. Cal. power § (at 45): fully p. 15Anderson today’s stated fn. decision is “Inasmuch as retroactive, any death, prisoner judgment now as to under sentence of which final, may inviting is file a for writ of habeas court superior modify judgment court to its provide punish for the alternative appropriate ment of imprisonment speci life imprisonment possibility parole or life without added.) fied statute (Italics for the crime for which he was sentenced to death.” *24 follow, however, no relief under that is entitled to It does not 190.1, Penal Code sections Anderson. Anderson concluded that first for which for the of death or life provide imprisonment punishment murder, authorize unconstitutional insofar as to are degree they purport valid of the death Thus since Anderson only imposition penalty. im- is life authorized these sections for first murder by punishment degree 15, ante.) Ac- prisonment. (See And Anderson is fn. retroactive.” “fully first sentence than cordingly, murderer now to a any degree greater subject life have the for that offense habeas to imprisonment seek may corpus sentence modified to life if the is final. imprisonment judgment now “any prisoner 45) that fn. Anderson in
The statement (p. of judgment modification the] . . . may a sentence death [seek under of added; (italics . . .” alternative punishment to for provide appropriate have death whose 15, ante) penalties indicate that see fn. does not prisoners statute the alternative than provided to a term greater been commuted not obtain may sentence was which the death imposed for the offense for merely words specify the italicized of their sentences. Rather modification manifestly It Anderson. is entitled to relief under one of who type prisoner under sentences that, murderers now although would be to hold inequitable is (which life reduced to imprisonment of death have their sentences may as Code, such 3046)), murderers (see peti- Pen. of § with possibility parole life imprisonment to have been commuted tioner whose death sentences re- restriction have that not entitled to possibility parole are without of are identical except their life sentences. The two moved from groups commuted, not un- have had their sentences in the latter group prisoners no And the offense. in of mitigation as a result circumstances likely should be us conclude that such inequities per- considerations have led mitted. Court, rather
Petitioner asserts the Solano County Superior be released he should than determine whether the Adult should Authority, vested is do not In California the power We agree. parole parole. Code, (Pen. 3040.) the Adult Authority. §§ reversed, case and the is of habeas The order writ granting corpus Court for further proceedings is remanded to the Solano County Superior of life sentence herein. Petitioner’s not inconsistent with the views expressed for the is modified possibility parole without murder imprisonment entitled to italicized is therefore apply the deletion of the words. Petitioner con- duly have his to the Adult for Authority application parole sidered. Sullivan, J., J., Tobriner, Mosk, J., concurred. J., C.
Wright, CLARK, J. I concurin the order the writ of habeas reversing granting and in the case to the Solano Court remanding further not inconsistent with the views proceedings 'carefully expressed but I majority dissent from opinion, sentence. modifying petitioner’s
To now reduce sentence to life with imprisonment possibility must encroach exclusive parole, majority Governor’s upon power *25 “The commutation. of state are execu legislative, powers government tive, and Persons judicial. with the exercise of one charged may power exercise either of the others as (Cal. this Constitution.” permitted by except Const., III, 3.) art. Commutation § of a sentence—on conditions deemed an executive proper—is (See vested power solely in Governor. Cal. Const., V, VII, art. 8 1); People art. (formerly Danielly (1949) v. 33 § § Cal.2d 18]; People P.2d (1948) [202 Tuthill 32 Cal.2d 505]; P.2d In re Lindley (1947) [198 P.2d [177 918]; see also (1951) Odle 37 Cal.2d 345].) P.2d concluded
Having
that the death
was both cruel and unusual
penalty
punishment
People v.
(1972)
Anderson
232-233 38].) Because neither Anderson nor other any case such proscribes punish- ment, to now further reduce sentence is to invade the Governor’s prerogative.
McComb, J., concurred. for a
Appellant’s petition rehearing denied March Mc- 1974. Comb, J., was of the that the opinion be granted. should