THE PEOPLE, Plaintiff and Respondent, v. MICKEY L. DUDLEY, Defendant and Appellant.
Crim. No. 31008
Second Dist., Div. Two.
June 16, 1978.
June 27, 1978
866 | 81 Cal. App. 3d 866
Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, Kent L. Richland and Joseph Levine, Deputy State Public Defenders, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Juliet H. Swoboda, Sandy R. Kriegler, William R. Ponders, Robert F. Katz and Robert R. Anderson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
COMPTON, J.--After a jury trial defendant was convicted of one count of first degree robbery. He appeals the judgment of conviction.
Defendant along with codefendant Smith committed an armed robbery of a market in Huntington Park about 8 p.m. on November 26, 1976. Smith was armed with a shotgun during the robbery. At the time of the robbery the owner, Choong Whan Lee, and a customer, Jesus Sosa, were in the customer area of the market; Lee‘s wife and three children were in
At 10 a.m. the next day, November 27, Huntington Park police officers Senf and Farris were investigating a traffic collision of three vehicles. Farris observed codefendant Smith in one of them, a black-over-green 1970 Pontiac. Defendant said he had been the driver of that vehicle. In plain view in the vehicle was a shotgun, whose stock protruded from between the front bucket seats. Defendant, who appeared to be inebriated, stated he was smoking “weed” and had taken a drug, probably Thorazine. No cash or money orders were found in the vehicle, and defendant had only about $12 on him. James Windley, a friend of defendant, testified he had lent the vehicle to defendant. Neither he nor defendant explained the gun‘s presence in the vehicle.
Shortly after these events three of the victims, Lee, Sosa, and Soo Park, identified the robbers from photographs. The facts surrounding the photographic identifications were developed out of the presence of the jury under
At trial, Lee, Soo Park and Jesus Sosa positively identified defendant as the robber without the gun. Additionally, Lee testified that defendant was one of two men whose photographs he had picked out from a group shown him at the Huntington Park police station.
Defendant presented an alibi defense, corroborated by testimony of friends.
We find no error or unfairness in the procedures used to identify defendant or in the procedures followed in using photographs for identification. Nothing suggests any unfairness in the court‘s action in calling Lee as its own witness to review the identification procedure.
The refusal to give CALJIC No. 2.71 precautionary instruction on admissions was at most harmless error. In view of the strong positive identification of defendant by three eyewitnesses, it is not reasonably probable that a result more favorable to the accused would have been reached had the instruction been given.
In pretrial proceedings the trial judge, the Honorable John Donnellan, conducted a
Defendant had been a patient in a mental hospital for six months in 1975 and one month in 1976. Prior to trial in this case he was examined by two court-appointed psychiatrists, Doctors Abe and Walters, whose reports were submitted to the court at a hearing on February 23, 1977, to determine defendant‘s present competency to stand trial. Dr. Abe‘s report of his examination on January 18 indicated defendant was subject to schizophrenic mental illness but was presently able to understand the nature and purpose of the proceedings and to cooperate with counsel in providing a defense.
Dr. Walters’ report of his examination on February 5 indicated that defendant was extremely uncooperative, that he had suffered past psychiatric episodes with a probable prior diagnosis of paranoid schizophrenia. Based on defendant‘s uncooperative attitude, Dr. Walters opined that defendant was not presently able to cooperate in a rational manner in presenting a defense. Judge Donnellan declared a doubt as to
Meanwhile, under an unrelated criminal information pending since February 1976, in a different branch of the Los Angeles Superior Court, defendant faced charges of assault with a deadly weapon.1 On February 4, 1977, the trial judge in that case, the Honorable Alfred Dibb, ordered an examination under
On March 25, Judge Dibb, under
At the hearing on probation and sentence Judge Donnellan recounted that on the second and third day of trial defendant‘s counsel had informally advised him that defendant had been found incompetent in another pending case. Judge Donnellan went on to state that during the rest of the trial he had carefully observed defendant and saw nothing to indicate any lack of competence.
Defendant here does not criticize Judge Donnellan‘s initial determination of competency. He argues that the fact that another judge, in another case involving a different charge, had reached a contrary conclusion required Judge Donnellan to conduct a second hearing on the issue in the case before him. We disagree.
A defendant is not entitled to a trial on the issue “... merely upon the statement of defense counsel that he believes the defendant is mentally incompetent.” (People v. Hays, 54 Cal.App.3d 755, at p. 759 [126 Cal.Rptr. 770].)
Judge Dibb‘s decision here was simply an expression of his opinion based in turn on the opinion of two expert witnesses. These witnesses’ examination of defendant was contemporaneous with and overlapping of the examination conducted by the expert witnesses upon whom Judge Donnellan relied. Judge Donnellan‘s knowledge of Judge Dibb‘s decision did not constitute that kind of substantial evidence which would compel us to hold, as a matter of law, that Judge Donnellan should have vacated his own decision on the issue.
The transcript of the trial including defendant‘s performance on the witness stand constitutes irrefutable evidence of the correctness of Judge Donnellan‘s decision. Judge Donnellan had a far greater opportunity to observe defendant than did Judge Dibb and the reports of the Doctors Abe and Pollack are, in our opinion, considerably more persuasive than those of the doctors who reported to Judge Dibb.
Aside from the simple fact that Judge Dibb reached a different conclusion, defendant has advanced no factual matters nor legal argument bearing on the correctness of Judge Donnellan‘s ruling.
The judgment is affirmed.
Beach, J., concurred.
FLEMING, Acting P. J.--I dissent.
The problem arises as a result of contemporaneous judicial rulings which gave diametrically opposed answers to the identical question: Was
I would, therefore, cut the Gordian knot of procedural niceties, reverse the judgment, and remand the cause to the trial court with directions to determine defendant‘s present competency to stand trial and retry him if found competent.
A petition for a rehearing was denied June 27, 1978, and appellant‘s petition for a hearing by the Supreme Court was denied August 10, 1978.