THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LEEVER, Defendant and Appellant; In re JOSEPH LEEVER on Habeas Corpus
No. A022498. No. A028078.
First Dist., Div. Two.
Oct. 29, 1985.
173 Cal. App. 3d 853
SMITH, J.
[Opinion certified for partial publication.†] †Pursuant to rules 976 and 976.1, California Rules of Court, this opinion is certified for partial publication. The parts ordered published follow.
John P. Ward, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
John K. Van de Kamp, Attorney General, Eugene Kaster and Mark S. Howell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.-Charged by information with the June 25, 1982, robbery of a teller at Bank of America‘s 420 Post Street office in San Francisco (
BACKGROUND
The following facts drawn from evidence at the guilt phase of trial are set out here as relevant to several issues raised. Further relevant facts are presented with the discussion of each issue.
After the conversation, Bushe traced a telephone number that Leever had left earlier in the day to a movie theater, went there and discovered Leever inside. Bushe called for the local police, explaining the situation. Arriving officers detained Leever and had him admitted to San Francisco General Hospital‘s psychiatric ward for 72 hours’ treatment and evaluation as a “5150” (
At about 11:30 the same morning as his release, Leever approached a teller window at 420 Post Street and handed teller Arturo Medrano a withdrawal slip on which were written words to the effect: “I‘m desperate. Give me twenties, tens and fives or I am going to shoot everyone. Help.” Leever‘s signature was on the bottom. Leever acted as though he had a concealed weapon. To Medrano, Leever looked nervous and anxious, sickly or drugged, and wore an expression that seemed to say, “Come on. Give it to me. I don‘t want to do anything.” He was pale, and his eyes were sunken and bloodshot, as if he had not slept in days. He appeared disguised and spoke in whispers which Medrano could not make out except for the repeated command, “Hurry up.” Medrano placed money on the counter. Leever fanned the money out, took $140 in twenties, leaving a rubber-band-bound package of bait money, and walked away. Medrano pressed his alarm button and reported the incident.
About two days later, at 4 a.m. on June 27, Leever walked into a San Francisco police station, said he wanted to turn himself in and ultimately confessed to the robbery. He was placed under arrest, at which point an apparent draft of the demand note used in the robbery was found in his wallet.
Defense witness Dr. David R. Kessler, a psychiatrist, conducted examinations of Leever and reviewed various hospital, police and other records
APPEAL
I
Three contentions relate to the following procedural facts. Public defender Michael N. Burt was Leever‘s appointed counsel beginning in August 1982, for the preliminary examination in municipal court, and ending on January 5, 1983, when Judge Edward Stern of the San Francisco Superior Court heard and granted Leever‘s motion to proceed in propria persona (hereafter Faretta motion [Faretta v. California (1975) 422 U.S. 806 (45 L.Ed.2d 562, 95 S.Ct. 2525)]). Simultaneously denied, with prejudice, was a previously filed motion by which Leever had sought to proceed in propria persona as to part but not all of the trial. On February 22, thе first day of jury trial, Leever tendered a written motion for advisory or “standby” counsel to assist at trial. The motion was denied, first by Judge Stern and, later that day, by trial Judge Robert L. Dossee. After the jury returned its verdict of guilty in the first phase of trial, Leever moved to be relieved of his in propria persona status and to have counsel reappointed. That motion, too, was denied, after a hearing at which original appointed counsel, Mr. Burt, advised the court that several weeks preparation would be required to ready himself for trial in the case. Leever continued to represent himself throughout the remaining proceedings.
Leever raises his first contention by way of both the appeal and the petition for writ of habeas corpus. Attached to the writ petition is a five-page letter to Judge Stern dated January 25, 1983. That letter, from a certified law clerk at the Prisoner Services Division of the San Francisco Sheriff‘s
We must conclude that the letter, despite its summary of Dr. Nievod‘s report, did not provide substantial evidence of incompetency. While the report of a single qualified professional concluding that a defendant is incompetent will furnish substantial evidence, even though contradicted by other reports and evidence (People v. Pennington (1967) 66 Cal.2d 508, 519 [58 Cal.Rptr. 374, 426 P.2d 942]; People v. Stankewitz, supra, 32 Cal.3d 80, 92), a report which merely contains evaluations without specific reference to the defendant‘s competency will not. (People v. Laudermilk, supra, 67 Cal.2d 272, 285; People v. Jensen (1954) 43 Cal.2d 572, 579 [275 P.2d 25].) “The expert must state with particularity that in his professional opinion the accused is . . . incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel.” (People v. Burney (1981) 115 Cal.App.3d 497, 503 [171 Cal.Rptr. 329] [competency to stand trial]; People v. Pennington, supra, 66 Cal.2d at p. 519.)
The PSD letter recites that Dr. Nievod found Leever to be suicidal, incapable of understanding “the nature of his illness,” impaired in judg-
The petition for writ of habeas corpus raises only this issue and so must be denied.
II-III*
IV
Leever contends, and we agree, that the trial court erred in the guilt phase of trial by not instructing on its own motion, pursuant to CALJIC No. 3.36 (1981 new) or a like instruction, as to the relevance of evidence of his mental condition at the time of the offense.4 Evidence deserving of the jury‘s consideration suggested that his mental condition might have prevented him from forming the larcenous intent necessary for robbery. That was, in fact, the key factual issue at trial. Thus, the principle of mental condition as affecting the existence of specific intent was closely and openly connected with the facts before the court, was necessary for the jury‘s understanding of the case and, therefore, required sua sponte instruction. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal.Rptr. 436, 650 P.2d 311].)
At the time of the 1982 offense in this case, the defense of diminished capacity in California had reсently been eliminated through the enactment of
*See footnote, ante, page 853.
A review of the entire record leaves us of the opinion that no miscarriage of justice resulted from the error and that reversal is therеfore not required. (
Leever‘s reliance on People v. Henderson (1963) 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677], does not help him. There the trial court‘s failure to instruct sua sponte on principles of diminished responsibility in a conviction for first degree murder was held to be prejudicial despite, as in this case, the issue being continuously before the jury as the sole defense theory in a case where the defendant‘s commission of the act was undisputed. The People contended that there was no prejudice because intent and state of mind were “fully developed by argument of counsel and were adequately covered by the instructions given.” (Id., at p. 491.) The Supreme Court agreed that “in light of such extensive argument on the issue of defendant‘s responsibility he could not have been harmed” by the lack of instruction “if the jury was otherwise properly instructed on intent.” (Italics added; ibid.) However, the diminished responsibility defense was held to have been effectively removed from the jury‘s consideration by improper instruction that intent was manifested in part by the “sound mind” of the defendant and that only idiots, lunatics and insane persons unable to tell right from wrong were of unsound mind. (Id., at pp. 491-493.) Thus, the erroneous “sound mind” instruction‘s removal of the diminished responsibility defense, “aggravated by the court‘s failure to give any instruction that told the jury for what purpose they could consider the evidence of that defense,” required reversal. (Id., at p. 494.) Here, by contrast, there was no erroneous instruction removing the defense from the jury‘s consideration. The failure to instruct on mental condition as affecting the formation of specific intent is not, alone, cause for reversal under the circumstances.
V*
VI
The insanity defense in California was redefined, effective June 9, 1982, through the enactment of
*See footnote, ante, page 853.
The California Supreme Court hаs recently resolved this issue in People v. Skinner (1985) 39 Cal.3d 765 [217 Cal.Rptr. 685, 704 P.2d 752]. Agreeing with the Court of Appeal in People v. Horn (1984) 158 Cal.App.3d 1014 [205 Cal.Rptr. 119], that the initiative provision‘s use of the conjunction “and” rather than “or” was apparently inadvertent, the court concluded that ”
After reviewing the entire record, we are of the opinion that a finding of insanity would not have been reasonably probable had the disjunctive “or” been used in the instruction. First, had the jurors been persuaded that Leever did not know the nature and quality of his act in robbing the bank, the instruction would have been harmless as a matter of law, for “a person who is unaware of the nature and quality of his act by definition cannot know that the act is wrong. In this circumstance the ‘nature and quality’ prong subsumes the ‘right and wrong’ prong.” (Fn. omitted, People v. Skinner, supra, 39 Cal.3d 765, 777-778; cf. People v. Richardson (1961) 192 Cal.App.2d 166, 172-173 [13 Cal.Rptr. 321].) Thus, the only potential harm in the instruction would be the converse situation--that is, if they found that he did not know his act was wrong but nevertheless found him sane because they believed that he knew the nature and quality of his act. It does not appear reasonably probable that the jury found that Leever failed to appreciate that his act was wrong, either legally or morally.
The evidence, viewed sympathetically to the defense, shows that Leever was depressed to the point of attempting suicide for the second time in a week and was motivated to rob the bank in order to get enough money to rent a hotel room where he could have the seclusion and privacy to take his life. His extensive history of institutionalizations left him ill prepared for life on the outside, and his release from the hospital that morning against his wishes disappointed and frustrated him, giving him reason to commit the robbery in retaliation against society or as a “cry for help.” He had been diagnosed in 1980 as a “paranoid schizophrenic in remission” and, according to recent diagnosis, had a “borderline personality disorder” but exhibited no signs of psychosis. Expert testimony was unanimous that Leever appreciated the criminality of his act, although one expert reported that it was “more debatable” whether, under the American Law Institute (Drew)
The evidence clearly showed that Leever had unusual motives for the robbery. It barely suggested, however, that he did not know the robbery was wrong. Without serious question, he knew the act was wrong in the sense of being illegal. That is most strongly evident from his planning (the rehearsed note), his demeanor during the robbery, and any motive he may have had to strike out at society or call attention to his plight. On the more pertinent question of his appreciation of moral, as opposed to legal, wrongfulness (see People v. Skinner, supra, 39 Cal.3d 765, 779-780), there is no more than a speculative inference that his unusual motives could have so distracted or distorted his thinking that he felt no consciousness of wrongdoing. Both of the experts to offer an opinion on the ultimate issue of sanity concluded that Leever was sane.10
It is highly unlikely, on this record, that the jury‘s finding of sanity was attributable to the erroneous instruction rather than the state of the evidence. It is thus not reasonably probable that the error аffected the result. (Contrast People v. Weber (1985) 170 Cal.App.3d 139, 145, 148-149 [215 Cal.Rptr. 827] [experts agreed that paranoic delusions left the defendant incapable of distinguishing right from wrong].)
VII
The jury found true allegations that Leever was convicted in federal court of an August 1975 bank robbery (
As with other statutory enhancements, the elements of a
On the other hand, рroof is not required where the defendant admits a properly pleaded enhancement pursuant to a plea bargain, after the required advisement and waiver of constitutional rights (In re Foss (1974) 10 Cal.3d 910, 930 [112 Cal.Rptr. 649, 519 P.2d 1073]; In re Yurko, supra, 10 Cal.3d 857, 863; People v. Lizarraga, supra, 43 Cal.App.3d 815, 817-818), for in that situation, where a bargain is struck, the defendant‘s admission is not limited to the scope of the fact of the conviction, but extends to all allegations concerning the prior, even though the People might have been unable to prove those allegations. (People v. Jackson, supra, 37 Cal.3d 826, 835-837; see also People v. O‘Bryan, supra, 37 Cal.3d at pp. 843-844.)
Leever‘s prior federal “bank robbery” conviction was determined by the trial court to constitute the California serious felony of robbery (
As noted in People v. Plies (1981) 121 Cal.App.3d 676 [177 Cal.Rptr. 4] (disapproved in People v. Crowson, supra, 33 Cal.3d 623, 632, fn. 10, on a point not relevant here),
We find it unnecessary to add our view to the Plies-Miramon conflict. The pertinent question is whether specific intent was considered a necessary element in the particular court whеre Leever was convicted. His conviction occurred in a federal district court within the jurisdiction of the Ninth Circuit Court of Appeals, which has stated without equivocation: “In the Ninth Circuit,
The other serious-felony enhancement similarly cannot stand. The underlying conviction, for felony assault with a dangerous weapon (
Leever argues, and we must agree, that a defendant convicted of assault with a dangerous weapon, as an aider and abettor, need not necessarily have personally used the assault weapon. Federal law punishes as a principal anyone who “aids, abets, counsels, commands, induces or procures” the commission of a federal offense. (
The Attorney General, noting that in the usual case proof negating the possibility of vicarious liability will be unavailable to the prosecution while vicarious liability will assertedly be a fact peculiarly within the defendant‘s knowledge, urges application of the so-called “rule of necessity and convenience” to place the initial burden of producing evidence of that fact on the defendant. The rule is traditionally applied in cases where the existence of a license, permit or other authorization is an exonerating fact, the existence of which would be relatively difficult or inconvenient for the prosecution to prove. (See, e.g., In re Andre R. (1984) 158 Cal.App.3d 336, 342 [204 Cal.Rptr. 723], and cases summarized.) An important limitation, however, is that the burden of producing the evidence may be shifted only where the defendant “has more ready access to that proof and subjecting him to this burden will not be unduly harsh or unfair.” (People v. Montalvo (1971) 4 Cal.3d 328, 334 [93 Cal.Rptr. 581, 482 P.2d 205, 49 A.L.R.3d 518].) Thus the Supreme Court in Montalvo, in examining a statute which made criminal the commission of certain acts by a “person of the age of 21 yеars or over,” reasoned that a defendant‘s precise age was known to him, not personally, but only through family sources or public or church records, and that a prosecutor would ordinarily be able to secure documentary evidence of age. Application of the rule of necessity and convenience was therefore not warranted: “The defendant may not necessarily have any substantially greater ability to establish his age than does the prosecution.” (Id., at pp. 334-335.)
A parallel situation is presented here. The problem of proof is that the judgment of the federal court does not contain enough information to determine whether liability was premised on Leever‘s status as an accomplice rather than as a direct perpetrator. The record does not show whether there are further, extant federal court records of the conviction, which is now eight years old. Nevertheless, the Attorney General does not suggest how Leever, or any other defendant, would have any greater access to such records than the prosecution. What the Attorney General seems to suggest, rather, is that Leever should have an independent recollection of the theory upon which he was tried-that is, that he can give testimony where there is no other evidence. However, as the court in Montalvo noted on the proof-of-majority issue, “in those rare cases where there is no evidence of the
Nor does the holding in People v. Sumstine (1984) 36 Cal.3d 909 [206 Cal.Rptr. 707, 687 P.2d 904], convince us that a defendant in Leever‘s position must affirmatively allege in the trial court that he was convicted on an accomplice theory, as the Attorney General suggests. Sumstine holds that a defendant bringing a motion in the trial court to strike an alleged prior on grounds of noncompliance with Boykin/Tahl procedures (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], cert. den. (1970) 398 U.S. 911 [26 L.Ed.2d 72, 90 S.Ct. 1708]) cannot rely solely on a silent record but must affirmatively allege that his Boykin/Tahl rights were violated before a full evidentiary hearing must be granted. (People v. Sumstine, supra, 36 Cal.3d at pp. 922-923.) Sumstine rests on the traditional burden of a defendant to affirmatively rebut the presumption of regularity accorded to a judgment being collaterally attacked on constitutional grounds. (Id., at pp. 924-925, conc. opn. of Lucas, J.; People v. Coffey (1967) 67 Cal.2d 204, 217 [60 Cal.Rptr. 457, 430 P.2d 15].) We are aware of no similar burden on a defendant who, like Leever, does not challenge the constitutional validity of the alleged prior but only disputes that its least adjudicated elements are fully congruent with the elements of the enhancement statute.
Next, the Attorney General contends that failure to prove the necessary congruence of elements was immaterial in this case because Leever “admitted” the alleged priors at trial.13 We disagree. Leever‘s statements that
To summarize, the deficiencies in proof that the prior convictions were for “serious felonies” (
In People v. Crowson, supra, 33 Cal.3d 623, a case concerning the validity of a prior-felony enhancement under
The Attorney General argues that Crowson has been undermined and the cases disapproved therein resurrected by Proposition 8‘s addition of subdivisions (d) and (f) to article I,
As for
The federal bank robbery and assault priors were also used to support one-year enhancements (whose imposition was ordered stayed pursuant to
As previously discussed (part VII, ante), the bank robbery conviction did not necessarily involve adjudication of specific intent as required by this state‘s definition of robbery (
Leever сontends that his federal assault conviction does not contain all the elements required for felony assault in this state, and hence for enhancement under
The federal statute (
The California statute,
Thus, both the federal and state law definitions consider some weapons or objects to be inherently deadly or dangerous, take into account the totality of relevant circumstances in assessing the potential injury from the use of any object and require, at a minimum, that the object (together with its manner of use under all the circumstances) creates the potential for great bodily harm or injury. There is no substantial difference, if any at all. Leever confuses the federal statute‘s intent requirement (to do bodily harm-arguably any bodily harm) with its more stringent requirement for the weapon or object‘s potential harm. Then, he mistakenly views
We hold that there is the necessary congruence of elements between the state and federal assault statutes to support the one-year enhancement under
DISPOSITION
The judgment of conviction must be affirmed. The judgment of sentence, however, cannot stand insofar as it imposes two, consecutive five-year enhancements for serious felonies under
Accordingly, the judgment of conviction is affirmed, and the case is remanded with directions to strike the three invalid enhancements and to resentence appellant in a manner consistent with the views expressed in this opinion.
The petition for writ of habeas corpus is denied effective upon the finality of our decision on the appeal herein (see Cal. Rules of Court, rule 24(a)).
Rouse, J., concurred.
KLINE, P. J., Concurring.-For me the closest question in this case is whether, when he received the letter from the certified law clerk working in the prisoner service division of the sheriff‘s offiсe, Judge Stern should have reconsidered his prior grant of Leever‘s Faretta motion and held a hearing on the issue of Leever‘s competency to waive counsel. In my view, that letter provides indicia of Leever‘s incompetence to waive counsel and conduct his own defense which, if it were standing alone, would require further judicial inquiry into the issue.
The letter did not stand alone, however, and it is for this reason that I concur in the judgment.
First, prior to the time the letter was submitted to him, Judge Stern had conducted a substantial inquiry into Leever‘s mental competency with the assistance of, among others, a physician, Dr. David Kessler, and a psychologist, Dr. Linda Carson, who under appointment examined Leever and reported to the trial court.
Second, during the several court proceedings prior to the court‘s receipt of the letter, Deputy Public Defender Michael N. Burt, who was then representing Leever, and who was familiar with the psychiatric reports submitted to the court, including that of Dr. Nievod,1 never indicated a belief Leever lacked the competence to waive counsel.
In short, Judge Stern‘s failure to reconsider the question of Leever‘s competence to waive counsel is primarily justified by the depth of his earlier inquiry into Leever‘s competence to stand trial. Even indulging the assumption that an inquiry into a defendant‘s competence to stand trial can be distinguished from an inquiry into his competence to waive counsel (see People v. Wolozon (1982) 138 Cal.App.3d 456 [188 Cal.Rptr. 35]; Felthous, Competency to Waive Counsel: A Step Beyond Competency to Stand Trial (1979) 7 J. Psychiatry & L. 471), both inquiries obviously focus upon the defendant‘s ability to act rationally in connection with his own defense. This is a matter that had been more than adequately investigated by Judge Stern prior to the time he received the PSD letter. It bears mentioning, as well, that the PSD letter did not identify any evidence of Leever‘s mental competence not previously available to and therefore presumably considered by the court.
Finally, the transcript of the trial before Judge Dossee confirms the judgment that Leever was competent to dispense with counsel and represent himself. Without citing specific examples, with which the transcript is replete, suffice it to note that Leever advanced a tenable defense theory, made intelligent tactical decisions, indicated familiarity with the rules of evidence and pertinent constitutional principles, conducted articulate and reasonably effective direct and cross-examination of witnesses, and, insofar as a cold record permits one to judge, tried his case skillfully. The fact that the jury rejected his theory shows only that the jury believed the evidence showed guilt. The trial record does not indicate defendant was mentally incompetent to waive counsel and conduct his own defense; indeed, it shows he was competent to do so.