Opinion
This is a petition for habeas corpus and an appeal from a judgment of conviction entered on jury verdicts finding petitioner and defendant Juan Vallejo Corona (hereafter appellant or Corona) guilty of 25 counts of first degree murder. 1
The prosecution and conviction at bench grew out of the killing of 25 migratory farmworkers who died during a time frame of Februaiy-May, 1971. The gravesites and bodies were discovered on the Kagehiro and Sullivan ranches in the Maiysville-Yuba City area of Sutter County, between May 20 and June 4, 1971. Although with the exception of Kenneth Whitacre, whose remains were uncovered first, the exact dates of the demise of the victims could not be determined, the evidence
Corona was connected to the crimes by an intricate and elaborate set of circumstantial evidence. To begin with, at all relevant times Corona was . employed as a labor contractor by Messrs. Kagehiro and Sullivan for the purpose of hiring and supervising itinerant farmworkers who did seasonal harvesting and thinning jobs in the orchards. As a consequence, Corona had unquestionable access to the area where the gravesites and the bodies of the victims were found. In addition, he was seen by several eyewitnesses in the area of the crimes at crucial times, and was connected to a number of graves by demonstrative evidence as well.
At the outset, it is well to remember that of all the victims only the time of Whitacre’s death could be determined with certainty. Mr. Kagehiro testified that af about 10 a.m. on May 19, 1971, he found a hole in the northeast corner of his peach orchard. The hole was about three and one-half to four fbet deep, seven feet long, and thirty inches wide. The dirt had been piled up alongside the hole. When later the same day, at or
Since the murder of the first victim showed the common hallmarks of all the other killings as well, the proof surrounding Whitacre’s death and appellant’s connection thereto gains special significance. Through a number of eyewitnesses, the prosecution established that Whitacre was last seen in the general area of the Kagehiro farm about 1 p.m. on May 19, 1971. Additional evidence produced by the prosecution revealed that appellant was present at or near gravesite No. 1 at the crucial period of time. Thus, witness Khera, who owned an orchard bordering Kagehiro’s property, testified that one or two days before Whitacre’s body was found, he saw appellant on his ranch close to the place where the gravesite was located. Corona was driving a “kind of white” van in the late afternoon. Khera stopped appellant and asked him what he was doing there. Corona told Khera he had come to look at the trees to see how much Khera was going to pay for work in the trees. The crew on the Kagehiro property had quit work at 2 or 3 o’clock in the afternoon, and Khera did not think that appellant had any business looking around that late. Khera had seen appellant once before in the same area.
Other eyewitnesses testifying to the presence of Corona at or near the crime scene were Sharon and David Schmidl. On May 19, between 8 and 8:30 p.m. they went to the Sullivan ranch to fish in the river. David walked over to the river while Sharon remained in their pickup. Although it was getting dark, they observed a red and white pickup parked nearby which bore the inscription “ ‘Juan V. Corona, Labor Contractor’ ” on the side. There was no one in the pickup. While Sharon was waiting for her husband, appellant was seen coming out of the brush, getting into his vehicle and leaving in a hurry.
Appellant’s connection with the killings became even more apparent when gravesite No. 3 was discovered. The body of the third victim, Melford Sample, disclosed the same type of wounds as Whitacre’s: hacking in the back of the head and stab wounds in the left chest. More significantly, however, about six to eight inches above the feet of the victim two pieces of pink paper were found. They were slips from the Del Pero Meat Company, dated May 21, 1971, and bore the name of Juan Corona. The two meat slips were folded together, and one of them was signed “ ‘Juan V. Corona.’ ” Mr. Frazier, a meat cutter at Del Pero Brothers Meat Market in Yuba City, testified that he sold meat to appellant on May 21, 1971; that appellant did not pay for the purchases but signed the sales slips as a charge; that he gave the slips to appellant who folded them and put them in his right shirt pocket; and the meat slips found in the third grave were identical to the sales slips given to Corona.
To dispel any possible remaining doubt, in the 25 th grave, the burial ground of Joseph Maczak, the police discovered a number of sundry items (candleholder, pieces of broken mirror, child’s sock) belonging to Corona (see discussion below), and more importantly two Bank of America deposit slips. Printed on the slips was “Juan V. Corona, 768 Richland Road, Yuba City, California.”
In view of the incriminating evidence found in the graves and gathered from various other sources, on May 26, 1971, appellant was arrested. Thereafter, pursuant to search warrants duly executed by a magistrate, appellant’s office facility (which was part of the mess hall) on the Sullivan ranch and his home were searched by the officers.
The search of the office facility yielded the following evidence:
In the kitchen there was a glass candleholder sitting in the sink. It was eight or ten inches tall, and about two or three inches in diameter. The candleholder was made of red, green and yellow colored glass, and there was writing on it in Spanish. The broken pieces of the glass candleholder found in the 25th grave bore great similarity to the candleholder seized in the mess-hall. The colors, the design and the Spanish inscription of the
In the corner of the mess-hall was a locked metal desk. In the lower left-hand drawer was a nine millimeter Browning automatic pistol in a case. The gun, which had been purchased by Corona in 1967, was loaded, cocked and had one round in the chamber and three in the clip; and the safety was off. The searching officer removed the clip and ejected the shell from the chamber. It is worthy to note that the 11th victim, William Kamp, was shot in the head with a pistol. Chemical analysis of the bullet in the head of that victim indicated that it had been manufactured by Remington; that it could have come from the same batch of bullets that were found in appellant’s desk; and that it matched bullets fired from Corona’s gun in several respects.
In the drawer with the gun was a long knife with a silver and black laminated handle. The knife was in a sheath. On one side of the knife blade were the words “Tennessee Toothpick.” There appeared to be coagulated blood on the knife near the guard.
A hunting knife in a leather sheath was found on the top shelf of some storage shelves along the west wall of the mess-hall kitchen, wrapped in a Spanish magazine. The handle appeared to be laminated leather. The knife was lying between the pages of the magazine, and could not be seen from the floor.
Hanging on a nail in the kitchen were several receipts, including receipts from the Del Pero Brothers Market made out to Juan Corona and signed at the bottom, “ ‘Juan Corona.’ ”
A subsequent search of the mess-hall additionally produced a Univеrsal brand V-6 ink pen that wrote in six different colors. As discussed later, the five colors of ink on the so-called “death ledger” matched the colors in appellant’s pen.
The search of Corona’s house led to the following pieces of evidence:
In the garage attached to the house the police found a post-hole digger leaning against the wall. The blade of the digger was covered with dried mud in which hairs were embedded. There was also a Levi jacket lying on boards laid across the rafters of the garage.
Under the driver’s seat of the yellow and white Chevrolet van parked in the driveway, the police found a bolo knife in an imitation leather zipper bag. In addition the bag contained two pairs of soiled men’s jockey shorts and nine millimeter shells. In the back of the van there were rubber boots and a shovel. Bloodstains appeared on the boots and all over the inside and outside of the van (on the spare tire, walls and ceiling as well as on the. outside bumper and tank).
During the search of the interior of the house, a green ledger was found in a filing cabinet drawer in the master bedroom. Between pages 52 and 53 of the ledger there was a single immigration document with writing on both sides. Pages 50 through 52 of the ledger contained names and dates, and there were names and dates written on the back of the immigration document as well. Furthermore, a receipt from Del Pero Brothers, dated May 11, 1971, and bearing the name of Juan Corona was found in a dresser drawer.
The ensuing laboratory examination of the items seized in the search of the mess-hall, the Corona house and garage revealed human blood of all four blood types. 2
There were human bloodstains (type O) around the muzzle and inside about an inch underneath the slide of the Browning automatic pistol. The “Tennessee Toothpick” knife found in the desk drawer had human blood (type B) in the area of the hilt. The hunting knife hidden in the Spanish magazine had human blood (type A) in the area of the guard, in a grooved area on the back of the handle, and along the cutting edge of the blade. The Levi jacket retrieved from the garage contained human bloodstains (group B) near the right shoulder. In the trunk of the Chevrolet Impala there were human bloodstains on the rubber molding near the latch on the trunk lid and on the latch itself, and there was a considerable quantity of human blood (type AB) over a good portion of
The van parked on the driveway showed three different human blood groups. The stains under the rear bumper were human blood of both groups A and O. The rubber gasket around the right door contained stains of human blood, group A. There were spots of human blood (groups B and A) inside the van.
There were human bloodstains (group O) on one of the two pairs of jockey shorts which were found along with the bolo knife and the nine millimeter shells in the imitation leather zipper bag under the front seat of the van. One of the rubber boots in the back of the van contained human blood, group A.
A later search of the little cabin which was located on the Sullivan ranch, and which was also under appellant’s control, produced among other things three pairs of trousers and a pair of Levis. Similar to the items retrieved during the previous searches, the clothes in question all contained human blood. The spots on the trousers were human blood, group A, and the stains on the Levis were human blood, group B.
Microscopic examination of the hair found on the post-hole digger in appellant’s garage reaffirmed that the hair was human. It was not appellant’s hair, and had similarity to the heаd hair of victims Whitacre, Hocking, Riley, Allen, Wenzel and Shields. It also contained an actively grown hair follicle, showing that it had been forcibly removed.
The green ledger, sometimes called “death list,” seized in the bedroom, furnished additional incriminating evidence against appellant. The ledger contained a number of names together with dates. Seven of these names were those of the identified victims.
3
It also included the name of one William Earl Vaughn who, although not an identified victim, had disappeared from the Marysville-Yuba City area, and also that of Jose
The additional circumstances shedding light on Corona’s contact with the victims and his involvement in the crimes may be summarized as follows:
Byron Shannon, another labor contractor in the Marysville area, testified that on May 3 or 4, 1971, he met John Henry Jackson, victim 21, who was looking for a job. Before they could come to any arrangement, Corona came by. After a short discussion, Jackson was hired by Corona who drove him away in his pickup truck. This was the last time Shannon saw Jackson alive. A similar occurrence took place on May 12, 1971. On that occasion Shannon was talking to Smallwood, Riley and Allen (victims 15, 16 and 17) in lower Marysville. Appellant drove up in a pickup truck and asked Smallwood, Allen and Riley if they wanted to work for him. They accepted the job offered by Corona and all left in appellant’s truck. Shannon never saw any of the three men again.
On April 10, 1971, about 3:30 or 4 p.m., James Pervis, a farm laborer, was walking on the road between Yuba City and Marysville. Appellant drove alongside the road and asked Pervis if he wanted to work for him for a couple of hours. Pervis refused and appellant drove away after some hesitation. Evidence introduced at the trial showed that appellant in fact did not start providing laborers for thinning until about May 6.
Jose Romero Raya testified that on the evening of February 24, 1970, he was approached by appellant near the Guadalajara Cafe. Raya was with one Nick Ramirez. Appellant asked the two men if they wanted to do some pruning work on the Sullivan ranch the next day. On answering that they did not know where the Sullivan ranch was, appellant volunteered to take the two men to the ranch in his pickup truck at that late hour. The evidence adduced at trial established that at the time
Appellant’s activities around the gravesites were further described by two eyewitnesses, Jacob Compton and Ernesto Garcia. Compton was an engineer for the California Department of Water Resources working on the Sullivan ranch from April through June 1971. On April 28 or 29, Compton saw a light colored van in the area. The van showed up twice on the same day. At mid-morning he saw the van come out of the brush into the bend of the river somewhat to the west of gravesite 21. In the afternoon Compton saw the van traveling along the road in the same area. Garcia testified that in April 1971 he was operating a tractor with a chisel in the south river bottom prune orchard. Appellant was working on the ranch that day, cutting trees near the camp. Appellant approached Garcia and asked him how deep the chisel would go. Garcia told appellant the chisel went about three feet deep. Appellant put his hand next to the chisel and marked the dirt line which showed how deep the chisel penetrated the ground.
Finally, the jury heard the testimony of Mrs. Beatrice Valdez, appellant’s neighbor in Yuba City. Mrs. Valdez worked in her yard almost every evening during January and February 1971. She observed appellant driving past almost every evening somewhere between 6:45 and 7, and returning within two to two-and-a-half hours. Appellant did not always use the same vehicle. Sometimes he drove the Impala, sometimes the van or the pickup. On returning, he usually washed his vehicle. However, as Mrs. Valdez often noticed, the job done by appellant was not complete. Instead of washing the car in full, he frequently did no more than hose out the inside of the vehicles. 5
Although appellant assails the judgment of conviction on a number of other grounds as well,
8
the central contention advanced in the appeal and
The background faсts giving rise to appellant’s contention may be described as follows: Corona was represented at the trial by Richard E. Hawk, a privately retained sole practitioner. Since Corona was not able to pay the substantial amount of attorney’s fees chargeable in a case of such magnitude, a fee agreement was entered into between the parties. Pursuant to the agreement, Hawk was granted exclusive literary and dramatic property rights to Corona’s life stoiy, including the proceedings against him, in return for legal services. Under the agreement, Corona expressly waived the attorney-client privilege, thereby removing any impediment to the publication of the most intimate and confidential details of his life and his trial. The surrender of all-inclusive publication rights and the attorney-client privilege was irrevocable and in perpetuity binding not only on Corona, but also his heirs, executors, legal representatives and assigns. The income derived from the publications was to inure solely and exclusively to 9 In the wake of the agreement, Hawk hired Ed Cray, a professional writer who participated in the proceedings as Hawk’s investigator and sat at the counsel table during the trial. Well before the commencement of the trial, Cray and Hawk entered into a contract with the MacMillan Publishing Company to publish the book to be written about Corona and his trial. The book, entitled Burden of Proof, The Case of Juan Corona, authored by Cray and supplemented by Hawk’s afterword, was published just a few months after the completion of the trial.
Reduced to definable legal terms, appellant’s contention in effect is twofold. One, the judgment of conviction should be reversed for lack of
(A) The traditional rules relating to inadequate legal representation, of course, are well settled. As repeatedly pointed out, the constitutional right to assistance of counsel in a criminal case includes the guarantee that such assistance be “effective”
(Gideon
v.
Wainwright
(1963)
Although the determination of whether the demands of due process have been met in a particular case is always a question of judgment and degree to be answered in light of all the circumstances and with a view to fundamental fairness, certain general standards have evolved for the aid of the court making this determination.
Fundamental among these is the duty of counsel to conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he may make informed decisions on his client’s behalf,
both at the pleading stage
(Von Moltke
v.
Gillies
(1948)
The decision not to raise a defense, of course, may be fully justified on the basis that it was made deliberately as a matter of trial strategy or tactics. Such decision, whether wise or unwise, when viewed with benefit of hindsight, may not be second-guessed or disturbed by the reviewing court. However, even the tactical and strategic determinations of trial counsel must have some rational support founded on reasonable, sound, legal principles and fully developed facts. Therefore, when trial counsel fails to acquire facts necessary to a crucial defense or to follow the facts already in his possession or to develop facts to which his attention is called, or when he fails to do the requisite legal research to learn the applicable law, his failure to raise a defense or defenses which could have been established by making the aforestated requisite efforts cannot be justified by reference to trial strategy or tactics
(In re Saunders, supra,
2 Cal.3d at pp. 1042, 1049;
People
v.
Ibarra, supra,
The record before us, including the transcript of the evidentiary hearing conducted by a referee on April 11 through April 13, 1977,
10
shows as a demonstrable reality
(People
v.
Martinez
(1975)
An analytical review of the evidence which was either in Hawk’s possession or which could have been acquired by him by the exercise of due diligence shows the following factual situation: As far back as 1956, Corona, then age 22, was admitted to the DeWitt State Hospital as a mental patient. He was in a delusional, confused state. He believed that everyone in the areа had .drowned in the “flood.” He read the Bible all day, and wrote all the time. He insisted that a Mexican doctor at one time
Although in April 1956 appellant was discharged from the hospital as recovered, psychiatric examinations conducted later indicated that his mental illness was far from being over. On June 3, 1971, while in custody, Corona was examined by Dr. Joseph Catton, a Los Altos, California, psychiatrist. Dr. Cation’s examination revealed that during the year before the commission of the crimes charged, Corona had been suffering from renewed hallucinations. In 1970, on a trip to Mexico, while traveling on a bus, he looked towards the hills and saw his deceased godfather who appeared to be talking to him. At another time he maintained that he had seen and met people in certain places which, in fact, had not happened. In his written notes, Dr. Catton concluded that appellant’s schizoid personality was still apparent during the June 3, 1971, examination. Dr. Catton doubted that appellant could at that time assist his counsel in the preparation of his defense, and recommended that appellant be sent to a state psychiatric institution for further observation and examination.
Between August 7 and September 12, 1971, Corona was examined in jail by Dr. Valentino Andres, another psychiatrist. In his report, Dr. Andres confirmed Dr. Cation’s finding that Corona was suffering from hallucinations and delusions. The report noted that at the August 24, 1971, examination, Corona stated that he was always thinking about his return to jail and his understanding was that at the end of three weeks he would be returned to jail. As a result of a series of psychiatric examinations, Dr. Andres found that Corona suffered from aggravated psychosis (“psychosis in exacerbation”), his insight was slight, and his judgment impaired. In remedying the exаcerbated psychosis, Dr. Andres increased the dosage of Thorazine, an antipsychotic drug from 300 milligrams to 500 milligrams per day for the first time, and later, at the peak of the illness, to a total of 1,400 milligrams per day. At the same time he recommended that appellant be placed in the Atascadero State Hospital until the psychosis was in complete remission.
Additional medical evidence in Hawk’s possession or at his disposal consisted of the findings of two other psychiatrists, Dr. Sheppard and Dr. Bromberg. Although these two medical experts failed to discern an
active
The opinions of the medical experts were supported by the observations of lay witnesses. Thus, Raymond Duron, who was a general foreman on the Sullivan ranch and personally acquainted with appellant, advised Detective Sergeant Purcell that Corona was mentally ill. Likewise, Sheriff Whiteaker, another lay person, stated in an affidavit filed with the court that in his opinion “the nature of the wounds and their savagery, the disposition of the bodies of the murder victims, and the shear number of victims indicates that the perpetrator of these
To sum it up, appellant’s mental competence, capacity, and legal sanity were called into question by (1) the very nature of the crimes, i.e., the senselessness and savagery of the murders committed without any apparent motivation (cf.
In re Hwamei, supra,
These circumstances, singly and in combination, provided sufficient facts to raise serious doubts as to Corona’s mental condition and imposed upon trial counsel the duty to follow the factual leads already furnished, to investigate and look into the meaning of the medical diagnoses and findings already on record, and to seek, if necessary, further psychiatric testimony with a view to establishing the mental incompetence, diminished capacity and/or legal insanity defenses (In re Saunders, supra, 2 Cal.3d at pp. 1041-1042). The record, especially the evidentiary hearing transcript, clearly indicates that trial counsel took none of the steps mandated by law.
Thus, the record discloses that Hawk never consulted Dr. Andres in order to figure out to what extent Corona’s judgment was impaired or to seek further explanation of the meaning of “psychosis in exacerbation” or to get to know the reason why Dr. Andres recommended appellant’s mental hospitalization. By a simple consultation with Dr. Andres, Hawk would have learned that during the August 8, 1971, examination, Corona was acutely psychotic; was unable to complete a thought; was suffering from paranoid ideation which, in simple terms, meant that he was out of touch with reality. He would also have learned that the Thorazine administered to Corona is an antipsychotic drug; that the highest dose given to Corona from September 1971 was a total of 1,400 milligrams a day, which was an outrageously high dosage for a human being to take; that the effect of 25 milligrams of Thorazine administered to a person not suffering from acute psychosis would be so great as to cause him to sleep
When questioned about Dr. Cation’s medical data, Hawk gave an ambiguous answer as to whether or not he was aware of said material. However, the record unerringly indicates that Hawk knew about the fact that Dr. Catton had visited and examined Corona in the jail. In point of fact, there is evidence that Hawk admonished Dr. Catton not to continue these jail visits. Also, the record lodged with the court shows that in a prosecution motion for a subpoena duces tecum filed on February 28, 1972, Dr. Catton was ordered to attend as a witness and to produce all records, reports and memoranda made in connection with Corona’s mental examination. It is thus clear that Hawk was put on notice of the existence of medical data resulting from Dr. Cation’s mental examination of Corona. By making due effort to obtain this data and/or to consult Dr. Catton who was one of the foremost authorities in forensic psychiatry, Hawk would have learned that on June 3, 1971, appellant’s paranoid and catatonic schizophrenic break which had been indicated in the 1956 DeWitt Hospital record, recurred, and Corona was suffering again from an altered state of consciousness and an inability to control himself. The medical opinion of Dr. Catton was also explicit that doubt existed as to whether Corona was able to assist counsel in his defense, which would have provided invaluable evidence as to a section 1368 mental incompetence hearing (see discussion, infra). Finally, by making further investigation, Hawk would have learned that Dr. Catton was of the opinion that in order to fully evaluate the mental competence, capacity, and sanity of appellant, a series of questions needed to be answered and that this was the reason why Dr. Catton suggested that Corona be placed in a mental hospital for further examination.
Trial counsel’s claim that the reports of Drs. Andres and Catton were superseded by the findings of Drs. Sheppard and Bromberg and would not have been useful in establishing any of the mental state defenses, is entirely unfounded and must be rejected for a number of considerations.
One, as pointed out earlier, Dr. Sheppard’s report was far from being definite and clearcut. While Dr. Sheppard concluded in his March 20, 1972, letter that Corona did not appear psychotic or hallucinatory at that time, he hastened to add that at the time of the examination appellant
Two, the report of Dr. Bromberg also fails to support trial counsel’s decision to forego the crucial defenses based on appellant’s mental condition. As noted before, the report itself indicates that the “patient demonstrates neurotic tensions, phobias, vague depressive feelings,” and that the “neurotic trends and phobias are related to his [the patient’s] old schizophrenic illness which ... is often called ‘schizophrenic scars’ ” (see fn. 11). These psychiatric phrases appearing in the record are, of course, not self-explanatory. They are terms of art requiring expert explanation, if their proper meaning and import are to be understood and resolved. Nonetheless, Hawk failed to make any further inquiries or investigation and, in fact, refused to permit, any psychiatric inquiry to be conducted. He did not look into the medical data and test results upon which the report was founded. He failed to interview Dr. Bromberg to seek a verbal explanation as to the meaning of the words used in the report. In fact, he did not contact Dr. Bromberg until September 1972, well over a year after the submission of the report. Even at that late date, he spent only about 20 minutes without even attempting to discuss the meaning and content of the report.
Dr. Bromberg’s testimony at the evidentiary hearing demonstrates that the information to be given by Dr. Bromberg would not only have been instructive, but absolutely crucial for trial counsel in making an intelligent and informed decision whether or not one or more mental defenses should be invoked. Thus, Dr. Bromberg stated that he did not feel that the examination conducted by him was completely thorough, because Corona held back a great deal of information and prevented him from getting into his inner feelings or psyche. For this reason alone, he expected that Corona would be examined further. But, despite the obvious obstacles which precluded him from getting past the facade of the patient, Dr. Bromberg nevertheless discovered certain indicia pointing to appellant’s psychological disturbances, i.e., Corona’s unreasonable
Dr. Bromberg believed that Corona’s fear of a flood, 16 years after his hospitalization, was tied to an acute psychosis which could have been either delusional or a serious phobia. Tendency to view decayed or deteriorating objects is also often characterized as a hallmark of psychosis. In answering questions, Dr. Bromberg explained that “schizophrenic scars” referred to in his 1971 report meant remnants or residue of a past schizophrenia which flare up in later life—frequently under pressure; that paranoid schizophrenia is one of the mental illnesses that fits into psychosis; and that psychotic persons are frequently not aware of the reality around them. Finally, Dr. Bromberg expressed his opinion that due to the fluctuating nature of psychosis and schizophrenia a psychiatric report could not be relied upon for more than three months without a reexamination of the patient. 12
Three, in addition to the foregoing, there are two major considerations why the Sheppard and Bromberg reports could not be relied upon by trial counsel in surrendering appellant’s right to the mental defenses in dispute. In the first place, two other physicians, Dr. Leavenworth and Dr. Prout, who had treated appellant during the relevant period and had been called upon by Hawk to prevent any psychiatrist from seeing and examining Corona, testified at the evidentiary hearing that in their opinion additional psychiatric inquiry was warranted with respect to appellant. 13
In the second place, the Sheppard and Bromberg reports dealt only with the narrow issue of appellant’s mental competence under section 1368 and failed to explore either diminished capacity or the legal sanity question under section 1026. As a consequence, these reports at best could only have dispelled the mental competence defense and served no justification for giving up the defenses of legal insanity and/or diminished capacity. It is, of course, elementaiy that the legal defense based on insanity embraces a question different from diminished capacity and/or the defense of mental competence. While the latter encompasses the determination whether at the time of the trial a defendant is able to understand the nature and purpose of the proceedings against him and to assist his attorney in the conduct of a defense in a rational manner
(People
v.
Laudermilk
(1967)
As a threshold matter, we emphasize that according to the principles discussed
ante,
the tactical or strategic decisions of the trial attorney must be based on a reasonable, rational foundation, both
First, the evidence as a whole attests to the fact that shortly after taking over the defense from the previous trial counsel, Van Den Heuvel, and even before seeing or getting acquainted with Corona’s medical record, Hawk made a factually unsupported predetermination that the possible defenses premised on Corona’s mental condition would not be utilized. On or about June 16, 1971, when interviewed by newspaper reporters, Hawk declared “I don’t intend to have him [Corona] plead not guilty by reason of insanity.” At the evidentiary hearing Hawk reaffirmed that at the time his statement to the press was made he had not read Dr. Bromberg’s report (or any other medical reports for that matter) and his decision was based solely upon his interview and conversation with Corona. 17
Second, as detailed above, Hawk acted as the sole determiner of Corona’s mental state without the advice and help of experts. He adamantly refused to discuss and analyze the medical reports and the underlying test data with the psychiatrists conducting the tests and examinations with the exception of Dr. Hooker, who, as noted before, also described appellant as paranoid and schizophrenic; consistently neglected to follow the near unanimous recommendation of experts to place Corona in a mental institution for further examination; neglected to follow the factual leads furnished in the reports for the purpose of developing further evidence and establishing the possible mental defenses based thereon; failed to properly evaluate and utilize even the medical data already acquired; and ultimately went so far as to prohibit any further psychiatric examination or evaluation of appellant. Therefore, what was said in
In re Saunders, supra,
Third, Hawk’s so-called “tactical” decision was unjustified for the further reason that it is blatantly lacking in sound legal foundation. The assertion that the invocation of the mental incompetence and legal insanity defenses, of necessity, would have worked for the benefit of the prosecution and would have lightened its burden of proving appellant’s guilt by providing the missing motive for the killings is predicated on the obviously erroneous legal assumption that the determination of the defendant’s guilt, his mental competence to stand trial, and his legal sanity take place in a single, inseparable procedure and that the jury deciding the issue of guilt would necessarily be contaminated by evidence of, or reference to, the mental issues. 18 In reality, the law is well established that the procedure designed to resolve defendant’s present sanity under section 1368 is entirely separate from the trial adjudging the guilt or innocence of the accused, and that the adjudication of a defendant’s legal sanity under section 1026 also takes place in a separate phase of a bifurcated trial.
Thus, it bears special emphasis that, pursuant to the explicit provisions of the statute, a defendant’s mental competence must be determined in a separate hearing held before a judge or a jury (if a jury is requested) impanelled solely for that purpose and, even more importantly, it is established when the court orders such hearing, all proceedings in the criminal prosecution must be suspended until the issue of defendant’s competence to stand trial has been determined at the special hearing (§ 1368; 19 Witkin, Cal. Criminal Procedure, § 510, p. 516).
The implicit argument that due to the widespread trial publicity appellant’s mental state, if raised in any form, would have been common knowledge in the community, and the jury trying appellant’s guilt would have been advised on the insanity issue even without receiving evidence on the matter grossly overlooks the well known fact that the law is well equipped to deal with the prejudicial effect of trial publicity. Thus, the injurious impact of trial publicity may be curtailed or eliminated —for example, by court orders restricting reporting or banning access by the media to certain confidential or prejudicial matter; by voir dirе examination of the prospective jurors; through the sequestration of the jury; by admonishment or instructions that in passing on defendant’s guilt the jury could consider only the evidence pertaining to that issue and could not consider any matter pertaining to a plea of not guilty by reason of insanity. That psychiatric evidence introduced in a special proceeding may be effectively kept out of public view is well demonstrated by the circumstance that there was no press publicity on the report of Dr. Andres, who visited and examined Corona in the jail at least on 10 different occasions, and whose medical findings and diagnosis were contained in court documents and discussed on the June 14, 1972, competency hearing. It also bears emphasis that Dr. Hooker’s continued mental examination of Corona also escaped the attention of the news media. We incidentally note that Hawk’s concern about the effect of trial publicity sounds especially hollow in light of the fact that it was Hawk himself who significantly contributed to the enhancement of mass-media coverage of the events, and in effect made renewed attempts to try the case in the press rather than in the court (see discussion,
infra).
Under these circumstances, we cannot but conclude that trial counsel’s failure to raise any of the mental condition defenses was the result either of ignorance of the law or was a deliberate intentional withholding of a crucial defense rather than any informed trial tactics or strategy (cf.
People
v.
McDowell, supra, 69
Cal.2d 737, 750;
People
v.
Welborn, supra,
Finally, in concluding that trial counsel’s lack of diligence and ignorance of the facts and law deprived appellant of his constitutional right to effective counsel, which, under the traditional law, calls for the
As set out in detail in the introductory part of this opinion, the evidence proving appellant’s guilt, although circumstantial, was overwhelming. Nonetheless, trial counsel failed to develop any of the defenses he promised in his opening statement (i.e., the alibi defense 22 proving Corona’s whereabouts on the crucial date of May 19, 1971, when Whitacre, the first victim, was murdered; that Corona had a leg infection and was not able to walk during the crucial period from the end of March to the middle of April 1971; that others also had access to the knives with which the killings were done; that the blood in appellant’s van originated from an injured person who was taken by Corona to a doctor; that the killings were homosexual murders and Corona was heterosexual, having a balanced, happy marriage; that character witnesses, including a priest, would testify that Corona was a peaceful, religious man, a good father incapable of violence). He did not call a single witness to testify on appellant’s behalf, but rather, offering no defense at all, submitted the matter upon the evidence produced by the prosecution. Under these circumstances the defense based on appellant’s mental incompetence and legal insanity was not only a “crucial,” but the “sole” defense in the case. To give up the mental incapacity defense in this situation was tantamount to a total withdrawal of any legal defense, a complete abandonment of the interest of the accused.
(B) We believe appellant’s alternative argument predicated on conflict of interest is equally well taken and furnishes an additional ground for reversal.
As spelled out before, the right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution is a
The case at bench, however, meets both of the aforementioned criteria. One, it is indisputable that by entering into the literary rights contract trial counsel created a situation which prevented him from devoting the requisite undivided loyalty and service to his client. From that moment on, trial counsel was devoted to two masters with conflicting interests—he was forced to choose between his own pocketbook and the best interests of his client, the accused. Two, the record as a whole abundantly demonstrates that the conflict of interest unanimously condemned by case law and proscribed by the canons of ethics 23 resulted in obvious prejudice to appellant, as we now explain.
Secondly, and more to the point, however, the record before us bespeaks far more than mere lack of diligence and ignorance on the part of trial counsel in pursuing and developing matters constituting fundamental defenses. In actuality, in the instant case we are confronted with the unprecedented situation where trial counsel assumed a position virtually adverse to his client and, totally unsupported by strategic or tactical considerations, took deliberate steps to thwart the development of viable defenses available to the accused.
Thus, the evidence demonstrates that substantial psychiatric data pertaining to Corona either already existed at the time of his arrest or was developed by psychiatrists who were commissioned by others than Hawk. It was also clear that instead of using the medical findings already in his possession, Hawk ignored the Andres and Cation reports in their entirety and those portions of the Sheppard and Bromberg reports that were, or seemed to be, adverse to his predetermined goal of not raising appellant’s mental condition as a defense in the case. Despite the expert recommendations that further psychiatric observation and treatment of appellant were indicated, Hawk, without seeking any expert advice, took the position that no further psychiatric tests or examinations would be conducted in the matter and in carrying out this objective he flatly prohibited any additional psychiatric observation and examination of Corona. Hawk’s resistance to developing crucial medical facts pertaining to appellant’s mental competence to stand trial per section 1368 reached its climax at the June 14, 1972, hearing. At that hearing, the entirely unreasonable and unheard of situation arose in which the trial court and the prosecution pressed for further psychiatric examination of appellant while trial counsel, who should have pursued the matter himself, vehemently opposed it, going so far as stating to the court that if any court order directing appellant’s psychiatric examination were issued, he would defy it and would also instruct his client not to obey such order.
24
Respondent’s argument that Hawk’s failure and/or deliberate refusal to invoke the mental defenses in question were excusable and without prejudice because (1) he had a good faith belief that his client was innocent; (2) the medical record in his possession and his personal experience gained from his contact with Corona provided reasonable cause to believe that Corona was mentally competent and sound minded; and (3) the record on appeal fails to support the proposition that the invocation of either of the defenses in dispute would have been successful (cf.
People
v.
Miller
(1972)
In reply to these questions, preliminarily it must be pointed out that the adequacy of legal representation is not measured by the subjective or objective belief of trial counsel as to a defendant’s innocence or the viability of certain defenses. On the contrary, the law imposes a mandatory duty upon trial counsel that the availability of the defense be determined as a result of diligent investigation of facts and research of law rather than personal impression or belief. But, even aside from this basic principle, the record negates respondent’s contention on each of the aforestated grounds. Thus, during a conversation which took place among Dr. Hooker, Ed Cray, and trial counsel on December 31, 1972, Hawk expressed his subjective doubts about Corona’s innocence. He stated inter alia, “I wonder if, if this guy [Corona] may not in his own mind sometime sit and wonder if he didn’t do all these things and doesn’t know it.”
The contention that Hawk had reasonable cause to believe that the mental competence or the legal insanity defenses were not available must fail for the simple reason that, as we have spelled out in detail earlier, there was a great wealth of evidence in Hawk’s possession or at his disposal, including the opinion of his own psychiatrist, Dr. Hooker, that unеrringly indicated that Corona was suffering from renewed psychosis, schizophrenia and paranoia.
Respondent’s contention that the failure of raising these crucial defenses was not prejudicial because they would have proved to be unsuccessful, begs the question and ignores the applicable law. The very vice of the procedure followed by trial counsel was his failure to properly investigate and develop facts which could have or would have given rise to the defense in question. Also, since the facts remained uncovered and undetected, there is no way of telling whether those facts, if fully developed, would or would not have established the defenses in dispute. If the record on appeal is defective or incomplete, it is due solely to the neglect of trial counsel. At any rate, the test of whether a criminal defendant was accorded an adequate legal defense does not depend on the potential success of the defense omitted, but rather on the consideration whether the defense withdrawn from the case was a crucial one.
As stated in
People
v.
McDowell, supra,
69 Cal.2d at pages 750-751; “In the case before us counsel’s misunderstanding of this basic rule likewise
Thirdly, the prejudice stemming from the conflict of interest is graphically illustrated by the widespread publicity generated or at least acquiesced in by trial counsel. The record shows that in violation of the basic rule requiring that the accused receive a fair trial by an impartial jury free from outside influences
(Sheppard
v.
Maxwell
(1966)
The damaging effect of a premature opening statement by the defense is well illustrated in the case at hand. Thus, counsel, in his opening statement, committed himself to the introduction of a variety of evidence which was not fully developed at the time the statement was made and/or which became irrelevant, meaningless or obsolete after the submission of the People’s case. When, due to the foregoing reasons or any other considerations, Hawk ultimately decided to forego all the defenses promised and submitted the matter upon the evidence introduced by the prosecution, he opened the gate to legitimate, devastating comments on the part of the prosecution. Although, under the rule pronounced in
Griffin
v.
California
(1965)
(C) In view of the foregoing conclusion, the additional issues raised by appellant do not require an extended discussion. Appellant’s contention that the trial court should have held a hearing as a matter of law under section 1368 lacks any merit for two reasons.
One, contrary to appellant’s insistence, the record establishes that Judge Hauck (or Judge Patton for that matter) never expressed doubt as to Corona’s mental state, and the order attributed to Judge Hauck was not made and/or was kept in abeyance upon the insistence of trial counsel.
Two, it is well recognized that defendant is entitled to a section 1368 hearing as a matter of law only if there is substantial evidence showing his mental incompetence
(Pate
v.
Robinson
(1966)
In
Theodor
v.
Superior Court
(1972)
In elaborating on the above holding, the Supreme Court explained that if the defendant challenges the accuracy of an affidavit, there are two preliminary issues to be resolved: (1) did the affidavit contain factual misstatements? (2) if so (and if the misstatements were not intentional), did the affiant nevertheless act reasonably in believing the facts to be true? Since the state has sustained its initial burden of the truthfulness of the facts by virtue of the affidavit itself, under well established rules the defendant must carry the burden of demonstrating the inaccuracy or falsity of the allegations if he attacks the affidavit on the said grounds. Consequently, before a hearing is required to test the veracity of an affidavit, the defense must relate, with some specificity, its reasons for contending that the affidavit is inaccurate (Theodor v. Superior Court, supra, 8 Cal.3d at pp. 101-103).
In the case at bench appellant made a section 1538.5 motion to suppress .evidence, and in the June 7, 1972, proceedings he proffered the testimony of several witnesses for the purpose of challenging the factual statements of the affidavits attending the search warrants. However, the trial court erroneously ruled that it would be improper to call witnesses to dispute the accuracy of the affidavits and consequently denied the motion. In view of the fact that under
Theodor
an initial showing of inaccuracy has to be made before a hearing is required, and since the record on appeal does not include the transcript of the June 7, 1972, proceedings, this court, on its own initiative, attempted to obtain the transcript of the offer of proof made at the June 7, 1972, proceedings. Despite those efforts, however, we have not been able to acquire this important transcript. In the absence of that record we are, of course, unable to determine whether the denial of the hearing constituted
Appellant lastly contends that the admission of the testimony of Jose Romero Raya was also erroneous. As mentioned before, on February 24, 1970, Raya was severely beaten in the Guadalajara Bar, Marysville, and as a result of the beating bears scars to his face and head. In effect, appellant’s argument is twofold: (1) the evidence provided by Raya was irrelevant, and (2) its relevance, if any, was outweighed by its prejudicial effect. Neither of these arguments may be accepted.
The record discloses that Raya’s testimony was not admitted to prove the fact that he was assaulted in the bar (which would have been clearly prejudicial), but rather for the purpose of showing that on the night of the assault Corona offered him and his companion work on the Sullivan ranch and asked the two men to ride out to the ranch. This testimony of Raya was patently relevant, because the record revealed that appellant had made similar offers to a number of the victims (i.e., Jackson, Smallwood, Allen, Riley) who, contraiy to Raya, accepted the offer, rode off with appellant and were never seen alive again. Also, Raya’s name and the date of the incident appeared in the green ledger along with the names of several victims. (See fns. 3, 4, ante.) In short, Raya’s testimony was highly relevant because it tended to show how the murderer recruited his victims, and also because it shed light on the probative value of the ledger introduced in evidence.
As far as the inflammatory nature of Raya’s scars is concerned, suffice it to say that the determination of whether the probative value of otherwise relevant evidence is outweighed by its prejudicial effect is within the sound discretion of the trial court, and absent a clear abuse of discretion, the ruling of the trial court will not be disturbed on appeal (Evid. Code, § 352;
People
v.
Terry
(1970)
In view of the conclusion reached in the case, the additional issues raised by the parties need'not be decided.
(1) The judgment in 1 Criminal 12401 is reversed.
(2) The writ in 1 Criminal 15257 is granted. Petitioner is remanded to the custody of the Solano County Superior Court for further proceedings in accordance with the views expressed in this opinion.
Taylor, P. J., and Rouse, J., concurred.
A petition for a rehearing was denied June 7, 1978, and the opinion was modified. On July 10, 1978, the judgment was modified. Both modifications have been incorporated in the above printing. Respondent’s petition for a hearing by the Supreme Court was denied July 20, 1978. Bird, C. J., was of the opinion that the petition should be granted.
Notes
The counts charged and found true by the jury are as follows: Count I: The murder of Kenneth Whitacre on or about May 19, 1971; count II: The murder of Charles Fleming on or about May 8 to May 11, 1971; count III: The murder of Melford Sample on or about May 21, 1971; count IV: The murder of an unidentified male adult on or about February 25, 1971, to about May 11, 1971; count V: The murder of Donald Smith on or about April 30 to May 11, 1971; count VI: The murder of John J. Haluka on or about February 25 to May 11, 1971; count VII: The murder of an unidentified male adult on or about February 25 to May 11, 1971; count VIII: The murder of Warren Kelley on or about March 30 to May 11, 1971; count IX: The murder of Segurd E. “Pete” Beierman on or about February 25 to May 11, 1971; count X: The murder of an unidentified male adult on or about February 26 to May 12, 1971; count XI: The murder of William Emery Kamp on or about February 26 to May 12, 1971; count XII: The murder of an unidentified male adult on or about February 26 to May 12, 1971; count XIII: The murder of Clarence Hocking on or about February 26 to May 12, 1971; count XIV; The murder of James W. Howard on or about May 1 to May 13, 1971; count XV: The murder of Jona R. Smallwood on or about May 12, 1971; count XVI: The murder of Elbert J. T. Riley on or about May 12, 1971; count XVII: The murder of Paul B. Allen on or about May 2 to May 13, 1971; count XVIII: The murder of Edward Martin Cupp on or about May 9 to May 13, 1971; count XIX: The murder of Albert Hayes on or about February 27 to May 13, 1971; count XX: The murder of Raymond Muchache on or about May 12, 1971; count XXI: The murder of John H. Jackson on or about April 15 to May 14, 1971; count XXII: The murder of Lloyd Wallace Wenzel on or about May 14 to May 22, 1971; count XXIII: The murder of Mark Beverly Shields on or about April 28 to May 15, 1971; count XXIV: The murder of Sam Bonafiede, also known as Joe Carriveau, on or about April 21 to May 20, 1971; count XXV: The murder of Joseph Maczak on or about April 26 to May 21, 1971.
According to expert testimony, the population of the United States belong to four diiferent blood types: 45 percent to group O; 40 percent to group A; 10 percent to group B; and 5 percent to group AB. Appellant has blood type O.
The ledger contained, among others, the following entries: “Warren Gerome Kelley March 30 1971 S.R. “William Earl Vaguhan [sic] April 5 1971 “John H. Jackson April 15 1971 “Mark Beverly SHialds [sic] April 28 1971 “Sam Bonafiede May 6 1971 “May 11 Charles Linil Flemig [sic] “May 12 Jona R. Smalwood [sic] “May 15 Paul B Allen 71”
It is noteworthy that Raya’s name appeared on page 50 of appellant’s ledger, together with the date “Fev. 24 1970,” the day Corona had asked Raya to accompany him to the Sullivan ranch. Both the date and Raya’s name were written in the ledger in the manner it would have been written in Mexico (cf. “Jose Romero R.”).
The record reads in part as follows: “Q. All right. And did you ever see him doing anything in the way of washing. ... A. Yes, I saw him several times—well, I wouldn’t say washing like you normally would your car like soaping it down or something. I would say I saw him several times with the hose and he was just washing the inside, this was all. Q. He was just washing—A. Yes, he was doing that. He had—he was just—he just had the hose in his hand and the back doors were open to the van. . . . Q. And you say—let me see if I get you right—he wasn’t washing the outside of the van? A. No, not like you normally would soap down your car on the outside and continue in the interior. He would just be squirting the car on the inside with the hose.” (Italics added.) [May 1978]
Unless otherwise indicated, all references will be made to the Penal Code of California.
From the standpoint of trial strategy, we recognize that the issue of diminished capacity involves very different considerations than either mental incompetency under section 1368 or insanity under section 1026. In other words, the injection of diminished capacity is generally a tacit admission by a defendant that he committed the act in question but is less culpable or responsible because of the diminished capacity to formulate a requisite mental element of the crime. While petitioner-appellant has focused on the sections 1368 and 1026 defenses,'we included the inquiry concerning diminished capacity in our order directing the evidentiary hearing. We did so because clearly in the face of the medical and psychiatric evidence which existed, an investigation into the feasibility and advisability of a diminished capacity defense should have been carried out
(In re Saunders
(1970) 2 Cal.3d-1033, 1041-1042 [
It is argued inter alia that: (1) The trial court committed error in disallowing appellant to present evidence challenging the truthfulness of affidavits supporting the various search warrants issued; (2) The failure of the trial court to hold a
sua sponte
evidentiary hearing on appellant’s mental incompetence (§ 1368) constituted reversible error; (3) The trial court erred in denying appellant’s discovery motion for information regarding prospective jurors; (4) Appellant’s right to a fair trial was violated (a) by the all-pervasive pretrial and trial publicity; and (b) by the failure of the prosecution to produce discoverable information and other materials in a timely manner; (5) The admission of witness Raya’s testimony that аppellant offered him employment was prejudicially erroneous; (6) The prosecutor’s comments on appellant’s failure to take the witness stand violated
The pertinent provisions of the fee contract which became a part of the record by virtue of the consolidation of the appeal and the petition for habeas corpus (cf.
In re Hwamei
(1974)
As noted before (fn. 9), we have consolidated the appeal and the habeas corpus petition for a single determination. In addition, in order to determine whether appellant’s claim of inadequate legal representation (raised both in the appeal and the petition) was well founded, we followed the practice suggested by the cases and appointed a referee for the purpose of taking evidence concerning the representation afforded to appellant-petitioner (People v. Pena, supra, 25 Cal.App.3d414,423).
Since Hawk claimed that he failed to invoke the mental incompetence, diminished capacity and/or legal insanity defenses mainly because of the Shеppard and Bromberg reports (see discussion, infra), we set out the relevant portions of those reports at length. In his March 20, 1972 letter, Dr. Sheppard stated: “On the above date I examined Mr. Juan Corona in the Sutter County Jail at your [the sheriff’s] request for the purpose of a psychiatric evaluation in order to determine whether or not he presently constitutes a hazard to himself or others. “During the hour I spent with Mr. Corona I found him to be cooperative and affable, conventionally oriented, and in possession of an intact memory for both recent and remote events. He denied both visual and auditory hallucinations. No evidence of delusional thinking was elicited. His sense of humor is impaired and his mood is decidedly depressive. There is no evidence of psychosis at this time. He is alleged to be receiving heavy doses of Thorazine. He appears to be in need of Artane or similar medication to prevent the complications of extra-pyramidal symptoms. “Diagnosis: Adjustment Reaction of Adult Life (307.3). “In view of the current depression it is my opinion based upon reasonable medical probability that Juan Corona does presently constitute a hazard to himself or others. It is further my opinion that he would benefit from a 1203.03 P.C. commitment for ninety days observation at the California Medical Facility.” (Italics added.) The summary of the Bromberg report read as follows: “. . . This individual is not psychotic now, he is able to confer with Counsel in his Defense and understand the charges brought against him. This patient demonstrates neurotic tensions, phobias, vague depressive feelings, which are in the setting of an ongoing personality concerned with practical realities. In this respect, the clinical examinations were confirmed by the various psychological tests. “The latter did not show any gross disturbances but the various underlying neurotic trends are noted previously. “These neurotic trends and phobias are related to his old schizophrenic illness which cleared up in the main: it is often called “schizophrenic scars.” They do not, however, interfere with his everyday activities. “There is no physical or neurological difficulty in this man.” (Italics added.)
The illustrative portions of the record read as follows: “Q. Dr. Bromberg, your rеport is dated June 15th, 1971, correct? A. Yes. Q. And it’s—the records show that the trial of Mr. Corona began in September of 1972. Would your report—could your report be relied upon a year and a half later, a year and a quarter later, in September of 1972, as an accurate measure of Mr. Corona’s competence to stand trial at that time in September of 1972? A. No, I would certainly like to re-examine him to make a decision in September of 1972. A year and a half of incarceration certainly has an effect on a person. Q. Could your records be relied on a year after itl A. No, my experience—three months—oh, at least three months after any given examination there should be a re-examination on that issue. Q. Were you ever asked to make such a re-examinatioríl... A. Not in this case, no.” (Italics added.)
Colloquy between counsel and Dr. Prout: “Q. And generally when a person suffers this situation, assuming it’s existing, isn’t it a good idea to have a psychiatrist work with an individual in this situation? A. Yes, I think so. If I didn’t say it previously, I will say that I certainly would have called in a psychiatrist for consultation had I not been essentially precludedfrom doing so by Mr. Hawk. ” Colloquy between counsel and Dr. Leavenworth: “Q. Did you believe additional psychiatric inquiry was warranted in Mr. Corona’s case? A. I thought so.” (Italics added.)
California law, which applies a variant of the M’Naughton formula, to be sane and thus legally responsible for the act committed the defendant must be able to know and understand the nature and quality of his act and to distinguish between right and wrong at the time of the commission of the offense (People v. Wolff, supra, at p. 801).
The record sets out in part as follows: “Q. What is the first step a lawyer normally takes, lawyers that you have worked with in these cases, in getting into cases involving the psychiatric defense? ... Is it normally the 1368 question, the competency to stand trial, that’s the first issue that’s addressed? A. That’s the first one I would say, yes. Q. And what issue follows after that? A. Well, then if the man is not competent, then there is either further treatment in a hospital or observation, or if there is any question about it, and then, of course, the question of irresponsibility at the time of the crime, which is less frequent than the incompetency. Q. Now, I think you used the words, ‘Irresponsibility at
By way of illustration, we set out the following excerpts from the record: “Q. What were your reasons for opposing the [§ 1368] motion? A. Because I didn’t want—I didn’t want the media to in any way get the idea that Judge Hauck entertained any suspicion about Juan’s mental capacity.” “Q. What were you concerned—what type of information did you not want to get to the media? A. I didn’t want the media to know there were any psychiatrists coming to see him. I didn’t want them to know there was anything about a 1368 pending or the Judge was even thinking about it. Q. What harm did you think such information would have done? A. It would have supplied the motive for the crime. If you have a.nut, you don’t need a motive.” (Italics added.)
The pertinent part of the record reads as follows: “Q. Did you at the time you made the statement to the press have the medical reports of Dr. Bromberg? A. I doubt it. Q. Thank you. A. But I talked to Mr. Corona. Q. But you did not have the medical reports—A. No.”
Of course diminished capacity, as we have earlier pointed out (fn. 7, ante), does depreciate a defendant’s denial of guilt, and counsel, very properly, is faced with a serious tactical decision whenever such a potential “defense” exists. But again, as we have noted, the issue of tactics or strategy here begs the question since counsel failed to properly investigate in order to be in position to make a rational and informed tactical decision not to raise the issue of diminished capacity (In re Saunders, supra, 2 Cal.3d at pp. 1041-1042).
At all relevant times, section 1368 provided that
“If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court
The pertinent portion of section 1026 read at relevant times that “ When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, he shall first be tried as if he had entered such other plea or pleas only, and in such trial he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. In such trial the jury shall return a verdict either that the defendant was sane at the time the offense was committed or that he was insane at the time the offense was committed. If the verdict or finding be that the defendant was sane at the time the offense was committed, the court shall sentence the defendant as provided by law. If the verdict or finding be that the defendant was insane at the time the offense was committed, the court unless it shall appear to the court that the defendant has fully recovered his sanity shall direct that the defendant be confined in the state hospital for the criminal insane, or if there be no such state hospital, then that he be confined in some other state hospital for the insane. If, however, it shall appear to the court that the defendant has fully recovered his sanity such defendant shall be remanded to the custody of the sheriff until his sanity shall have been finally determined in the manner prescribed by law.” (Italics added.)
As noted in the statute (§ 1026) itself (see fn. 18, ante), the insanity issue “shall be promptly tried, either before the same jury or before a new jury in the discretion of the court.” (Italics added.)
The only feeble attempt made by trial counsel to prove alibi was by way of cross-examination of prosecution witness Sarah Vallejo. Mrs. Vallejo testified that on the morning of May 19, 1971, appellant came to her home to pick up the rent and stayed there until about 4 p.m. while installing a door. However, Mrs. Vallejo was not certain whether it was May 19 or 20, 1971, when appellant worked on the installation of the door.
The American Bar Association Code of Professional Responsibility, Disciplinary Rule DR 5-104(B) states: “Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.” (See to the same effect
United States
v.
McCord
(D.C.Cir. 1974)
The illustrative portions of the record read as follows: “THE COURT: So the Court is necessarily concerned in every case where anybody is charged with a crime whether they are presently sane or not. Of course,
in the usual instance where there is no question of insanity, certainly it’s raised by the defense counsel and you are asserting here most
The remark of the trial judge is especially apposite: “THE COURT: Now, I would emphasize, of course, that under the procedure and reference suggested by the Court the two questions which would be posed are as follows: Is the defendant presently able to understand the nature and purpose of the proceedings taken against him? And, is he presently able to cooperate in a rational manner with counsel in presenting a defense? Now, you have indicated to the Court, Mr. Hawk, that you have a profound and abiding belief that your client is sane and he is not—is not insane, is not mentally incompetent, and feeling that way, I don’t understand your hesitancy in recommending that the Court follow the suggested procedure.” (Italics added.)
As the trial court observed in an in camera discussion, “Of course, I heard you [Hawk] on television last night; and it would seem to me that your attitude expressed to the press is that all of these matters should be conducted publicly.” On another occasion, the trial court also remarked, “You are making outrageous statements out there, speaking to the press and public, trying to prejudice the trial of this case and inflame the passions of anyone who may read or hear of it.”
The pertinent colloquy may be described as follows: “MR. HAWK: .... Apparently—I assume what they are really trying to do, Your Honor, is trying this matter in the press, with hopes that some of the jurors are going to see it. MR. TEJA: We didn’t assume that the press was going to be present, Your Honor. MR. HAWK: Pardon? MR. TEJA: We didn’t even assume that this would be held in open court, Your Honor. MR. HAWK: Well, I don’t know. I am not moving to exclude the press. MR. FAHEY: We are not either. MR. HAWK: You can do it any way you want; but—MR. TEJA: We assumed that the defense would exclude the press. MR. HAWK: Well, you assumed wrong.” (Italics added.)
By illustration, we cite the following portions of the record: “In his opening statement the defense lawyer promised you he would prove a number of things none of which he proved. “He promised you first that Mr. Kamp, one of the victims in this case, was killed by a 116 grain Winchester Western bullet. We know from the evidence that this is not true. “He told us that neither of the defendant’s two bloody hunting knives could have caused the stab wounds in the dozen and a half or so victims in this case who were stabbed.” (Italics added.) “The defense apologized in his opening statement, in Mr. Hawk’s opening statement to the ladies of the jury for having to bring experts here to talk about machismo, activo homosexuals,... the fact that the defendant is hopelessly heterosexual, the evidence that he was going to introduce that these were homosexual murders, that these victims were in many cases, or at least in some cases, men who were killed with their pants halfway off or halfway on. “There is no such evidence whatsoever before you for your consideration. None of this which was promised you was provided by the defense.... “The defense promised you experts but produced none.” (Italics added.)' “The defense also promised you character evidence that the defendant was an honest, peaceful, quiet man. You were promised that you’d hear the testimony of a Father Bishop, of Mr. Sullivan, of Mrs. Corona, of the defendant’s family. “Well, none of these people testified.... “The defense’s unfulfilled promises here amount to quite a few, ladies and gentlemen. That the bullet from the defendant’s gun, that a bullet from the defendant’s gun could not have killed William Emery Kamp; that an employee bleeding in the van accounted for the massive amounts of blood which were found in that vehicle; that the defendant’s leg infection would have prevented his having committed these particular murders during a certain period of time. “All of these things about Emilio Rangel, all of the allegations about homosexuality, its involvement in the killings and heterosexuality of the defendant. Evidence, for that matter, that the defendant Juan V. Corona didn’t beat his wife and children, things which were promised you but which things we have never heard here as evidence in this particular matter.... “It is easy for an attorney to talk a great deal; it is easy for an attorney to promise a great deal; producing cold, hard evidence of fact is sometimes a great deal more difficult. “In this connection, also, Mr. Hawk’s opening statement is not evidence before you. It consisted of his statement of the evidence that he intended to produce, none of which was forthcoming. “Where are the medical records he referred to? Do they exist? Where is any evidence regarding this Emilio Rangel who was the defendant’s employee? Where is the alleged public record about the employee of the defendant who bled in the van? “ Where is this expert testimony about homosexuality and heterosexuality? “Where is the character evidence that was promised here?” (Italics added.) “The reasonable, logical conclusion from these facts, which the defendant has not bothered to attempt to explain, ladies and gentlemen, together with all of the other evidence in the case, for example, the blood in the van, the bloody weapons in the defendant’s possession, is that the defendant drove Kenneth Whitacre to his grave in the little yellow van that has the license number 107 BVR....” (Italics added.)