Lead Opinion
Introduction
After he was found competent to stand trial, defendant Michael B. Skeirik was convicted of two counts of assault with a deadly weapon and one count of possession of a firearm by an ex-felon. The jury found true various special allegations, including a habitual offender allegation under Penal Code section 667.7
On appeal, defendant argues that his convictions should be reversed because (1) the trial court erroneously relieved his counsel prior to the hearing to determine his competency to stand trial; (2) his right to due process was violated by allocating to him the burden of proving his incompetence to stand trial; and (3) the trial court erred in refusing to accept his plea of not guilty by reason of insanity by failing to determine that good cause did not exist for his delay in asserting the plea. Defendant also raises various challenges to his sentence.
In the published portion of the opinion we find no sentencing error in imposing multiple life terms under section 667.7, but do find that the court erred in imposing a determinate sentence on counts II and III, and 10 years for the 2 prior serious felony conviction enhancements. Out of concern that trial judges may mistakenly use the language of CALJIC No. 4.10 (1984 rev.) to instruct the jury in all hearings to determine the competency of a defendant to stand trial, we will also publish that portion of the opinion rejecting defendant’s due process attack on the presumption of competence codified in section 1369, subdivision (f).
In the unpublished portion of the opinion we find the trial court did not improperly reject, the day before trial, a plea of not guilty by reason of insanity. We also find no prejudicial error in the appointment of new counsel to represent defendant at the hearing to determine his competence to stand trial.
Accordingly, the determinate sentences on the assault charges and the two 5-year enhancements are stricken. In all other respects, the judgment is affirmed.
On the evening of December 30, 1986, a man later identified as defendant Michael Skeirik forced his way into the apartment of Ron Beck by pointing a gun at him. Defendant repeatedly asked Beck where Gerald Rose was and Beck insisted that he did not know. Defendant threatened to blow Beck’s head off. He then aimed the gun at the head of Beck’s girlfriend, Rikki, and made the same threat. Beck insisted that he did not know where Rose was.
Defendant sat down on the sofa and called Mike Edwards into the apartment. Defendant fired a shot in Beck’s direction. He then put his arms around Beck’s neck, with the gun under his chin. The gun went off. Beck was shot through the right side of his neck. Defendant and Edwards left the apartment.
A neighbor observed a white pickup carrying two men backing up and driving off in a hurry.
Later that evening defendant approached Robert Turner and Pete Lorenz and asked them if they were police officers. After they responded no, defendant told them he had a .357 magnum and shot at them. Turner got into his car and made a U-tum to see defendant’s vehicle clearly. He called the police.
Defendant was apprehended that evening driving a Chevy van and armed with a .357 magnum in a shoulder holster.
By second amended information, defendant was charged with one count of attempted murder in violation of sections 664/187 (Ron Beck) (count I); two counts of assault with a deadly weapon by force likely to cause great bodily injury in violation of section 245, subdivision (a) (Ron Beck; Robert Turner and Peter Lorenz) (counts II-III); and one count of possession of a firearm by an ex-felon or addict in violation of section 12021, based on a 1966 robbery conviction (§211) and a 1982 conviction for assault with a deadly weapon/use of firearm (§§ 245, subd. (a) and 12022.5) (count IV).
A special allegation of use of a firearm in the commission or attempted commission of a felony in violation of section 12022.5 was charged as to counts I, II and III. A special allegation of great bodily injury in violation of section 12022.7 was charged as to counts I and II. Defendant was charged with a special allegation of habitual offender in violation of section
Defendant entered a plea of not guilty and denied the special allegations.
A day before trial was scheduled to begin and approximately one month after Attorney Russell Swartz was appointed to represent him,
After the Marsden hearing, the court denied the motion and indicated that defendant’s plea was not guilty.
Trial began on November 10, 1987. The court denied defendant’s request that he be granted cocounsel status with Swartz.
Competency Proceedings
Suggestion of Doubt
On November 12, 1987, Swartz indicated his willingness to accept the jury. He also indicated defendant’s disagreement with this tactical decision based on his desire to challenge the jury for age, race and anticrime bias of the elderly.
Swartz informed the court that he questioned defendant’s ability to rationally assist counsel in the conduct of his defense under sections 1367-1368. Swartz indicated that in February defendant had met with Dr. French, a psychiatrist, regarding his mental competence and that Dr. French had concluded that defendant was competent and that a section 1368 procedure was not appropriate. Dr. French indicated that defendant should consider a not guilty by reason of insanity defense. According to Swartz, defendant advised Dr. French and his previous attorneys that he did not wish to enter a plea of not guilty by reason of insanity. Defendant
Defendant told the court that he disagreed with Swartz’s focus on a negotiated plea, which defendant felt was excessive in light of his mental state at the time of the episode. Defendant agreed with the court that the competence hearing should be conducted because his mental state at the time of the event was extremely bad.
The court suspended the proceedings under section 1368 and appointed Dr. Wilson to evaluate defendant and report to the court the next day.
On November 13, 1987, a hearing was held during which Wilson testified that, although defendant clearly understood the nature of the proceedings, he was not competent to cooperate with counsel in a rational manner or to rationally assist counsel at trial. His opinion was based on an examination of defendant of two and three-fourth hours’ duration. There was a suggestion of organic affective brain syndrome from a motorcycle accident. Within a conversation, defendant would exhibit short-term rationality but long-term irrationality.
After hearing Wilson’s testimony, defendant informed the court that he believed himself to be able to both participate in his trial and to defend himself at the competency trial. He requested a jury trial on competence. The court ordered further proceedings under sections 1367 and 1368 and discharged the jury.
Relieving Counsel Prior to 1368 Hearing
At this point, the court stated “[I]t will be necessary in the Court’s view to appoint counsel for defendant for his trial under [section] 1368.” The court gave no reason for the substitution; however, according to Swartz, he was removed because “[b]asically, I thought the 1368 section applied and
Attorney Suter, who was the next available counsel on the court’s list of available attorneys, was appointed. At a subsequent hearing, the court noted that Suter intended to “withdraw” the request for section 1368 proceedings
Jury Trial on Competency
At the jury trial on competency, Suter stipulated to the previous testimony of Wilson and then took the part of defense counsel when the testimony was read to the jury. Included in this testimony was a cross-examination of Wilson by Swartz.
Caruso testified that there was no indication that defendant suffered from organic brain damage; that there was no sign of mental deficiency; that defendant was able to understand the nature of the proceedings and to rationally assist his counsel. His opinion was based on testing and an interview/examination of two and one-half hours’ duration. He did not notice a deterioration in defendant as time progressed, but just the opposite—with time, defendant became a more effective communicator. Caruso noted that defendant was very upset and angry at the criminal process and the length of time he had been in jail. Although defendant “got off on that a little bit,” there was no confusion or deviancy in his thinking patterns at those times and Caruso had no difficulty in refocusing him.
No other testimony was received. In closing, Suter asked the jury to weigh the opinions of both experts and to apply the facts to the law.
The jury was instructed that “defendant is presumed to be mentally competent and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of mental disorder [or developmental disability] . . . .”
The jury found defendant mentally competent to stand trial and criminal proceedings were resumed under section 1370.
On January 6, 1988, the court granted defendant’s motion for appointment of new counsel. Swartz was relieved and Suter was appointed to represent defendant at trial. On March 22, the court denied defendant’s Marsden motion for substitution of counsel.
A bifurcated trial was held, first on counts I-III, then on count IV and the special allegations. Defendant was found guilty on counts II-IV. All special allegations were found true.
A mistrial was declared on count I and the charge was eventually dismissed upon the motion of the district attorney.
The court denied probation and sentenced defendant to a determinate sentence of eighteen years, four months in prison on two counts of assault with a deadly weapon, one count of felon in possession of a firearm, two enhancements under section 12022.5, and two enhancements under section 667, subdivision (a). The court also sentenced defendant to two consecutive life sentences pursuant to section 667.7, subdivision (a)(1), the habitual criminal statute.
I
Relieving Counsel Prior to the Competency Hearing
II
Burden of Proof
At the hearing to determine whether defendant was incompetent to stand trial, the trial court used the jury instruction set forth in CALJIC No. 4.10 (1984 rev.) to instruct the jury that “[t]he defendant is presumed to be mentally competent, and he has the burden of proving by a preponderance of the evidence that he’s mentally incompetent as a result of some mental disorder or developmental disability.” After obtaining the finding of competency he desired, defendant now contends for the first time on appeal that the presumption of competence codified in section 1369, subdivision (f), denied him due process of law by irrationally allocating the burden of
The conviction of an accused person while he is legally incompetent violates due process. (Pate v. Robinson (1966)
Section 1367 provides in part: “A person cannot be tried or adjudged to punishment while such person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” The underlying theory is that an incompetent person is incapable of adequately defending himself against the charge. (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 2987, p. 3666.)
“Although the competency hearing takes place as a result of, and during, a criminal trial, it is not a criminal action, for it does not involve a charge of crime nor result in a criminal punishment. It is a special proceeding, governed by the rules applicable to civil proceedings.” (5 Witkin & Epstein, op. cit. supra, § 2989, at p. 3667, italics omitted; see People v. Conrad (1982)
Section 1369 subdivision (f) provides: “In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous.”
When a doubt arises as to the defendant’s mental competence to stand trial, the trial court has an independent responsibility to state that doubt on the record and, if necessary, recess the proceedings to permit defense counsel to form an opinion as to his client’s competency to stand trial. (§ 1368, subd. (a).)
Thereafter, if an information, indictment, or misdemeanor complaint survives a defendant’s challenges as to its validity, a hearing is held on the question of mental competency to stand trial. (§§ 1368.1, 1369.) The defendant is entitled to have the issue of his competency tried by the court or a jury. (§ 1369.) The trial court must appoint a psychiatrist or licensed psychologist and other appropriate experts to examine the defendant. Expressly recognizing that neither the prosecution or defendant and his counsel may be seeking a finding of incompetence, section 1369, subdivision (a), provides in part that “[i]n any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.”
Consistent with the imposition of pretrial requirements on the trial court to independently take steps to assure the competence of the defendant (§§ 1368, subds. (a) & (b), 1369, subd. (a); see fns. 15, 16, 17, ante), the statutory scheme recognizes that there may, as was the case here, be evidence supporting a finding of incompetence known to the court as a result of its appointment of mental health experts, yet neither the prosecution, defendant nor his counsel have any real interest in presenting it to the fact finder. Section 1369, subdivision (b)(2), provides that “[i]f the defense de
The trial court needed a procedure for presenting the evidence of incompetence to the jury, thereby assuring that the proscription against trying an incompetent criminal defendant was not violated. (§ 1367; see also People v. Lawson (1918)
Through argument and through the stipulation and resulting reading of Dr. Wilson’s testimony, defendant and his counsel presented the case for a finding of incompetency. The presumption of competency operated against that position. Using CALJIC No. 4.10 (1984 rev.), the trial court accordingly instructed the jury that the defendant bore the burden of proving by a preponderance of the evidence that he was incompetent. (§ 1369, subd. (f); Evid. Code, §§ 502, 606.)
We caution trial judges not to uncritically rely on the language of CALJIC No. 4.10 (1984 rev.). The language of the instruction incorrectly assumes that the burden of proof will always be on the defendant. As we have explained, the burden of proof will be on the prosecution when the prosecution is the only party seeking a finding of incompetence. On occasions when neither party seeks a finding of incompetence and instead the
Defendant’s claim that the presumption of competence codified in section 1369, subdivision (f), denied him due process of law by irrationally allocating the burden of proving incompetence to someone who may not have been able to assist his attorney prior to and during the hearing has been expressly rejected by the Supreme Court in People v. Medina (1990)
Ill
Not Guilty by Reason of Insanity Plea
IV
Sentencing Issues
Under section 667.7, any person convicted of a felony in which the person inflicted great bodily injury or personally used force likely to produce such injury who has served two prior separate prison terms for, inter
Defendant was determined to be a habitual criminal and sentenced to consecutive indeterminate life terms under section 667.7, as to counts II and III. His habitual offender status was based on two prior separate prison terms charged as special allegations in the second amended information. The alleged prior prison terms were a June 3, 1982, conviction for assault (great bodily injury) with a deadly weapon accompanied by a special allegation of use of a firearm and an April 4, 1966, conviction of robbery in violation of section 211. Defendant does not contest the use of his 1982 conviction as one of the two prior convictions necessary to sustain his habitual offender sentence.
At the bifurcated trial on count IV and the special allegations, the prosecution introduced commitment packets, including one for defendant’s 1966 robbery conviction. The 1966 commitment packet contained certified copies of the information; a minute order regarding arraignment; the verdict form; a hearing on probation and sentencing; and the abstract of judgment. The information charged defendant with a “violation of Section 211 . . . [Robbery], in that on or about the 6th day of December, 1965, in the County of Orange, . . . , [defendant] did willfully, unlawfully and feloniously rob Laura Jean Logan of money by then and there using a deadly weapon, to wit: a pistol.” The verdict form indicated that defendant was found guilty of violating section 211 “as charged”, and found the robbery to be in the first degree. Based on this evidence, the jury found defendant guilty of the crime of being an ex-felon in possession of a firearm (§ 12021) and found the allegation under section 667.7 that he had committed a “robbery involving the use of a deadly weapon” in connection with his 1966 conviction to be true.
Habitual Offender Life Sentences
When defendant was convicted of first degree robbery in 1966, former section 211a fixed the degrees of robbery as follows: “All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon ... is robbery in the first degree. All other kinds of robbery are of the second degree.” (Stats. 1923, ch. 127, § 1, pp. 270-271, amended Stats. 1961, ch. 1874, § 1, p. 3975, italics supplied.) Relying on our decision in People V. Brookins (1989)
There is no prohibition against referring to the information or the verdict form in the commitment package to elucidate the substance of defendant’s prior conviction. “[I]n determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.” (People v. Guerrero (1988)
In Brookins, we comprehensively reviewed the meaning of the phrase “deadly weapon.” We noted that the distinction between deadly weapons and dangerous weapons had not always been made or drawn at all. On occasion, as in former section 211a, the term “dangerous” had been conjoined with that of “deadly.” Some cases treated “the terms as synonymous and the distinction drawn has been between those instruments which are designed to be lethal (such as guns, dirks and blackjacks) and those which are merely used in a lethal way.” (
By contrast, the information contained in the record of conviction here specifically charged that defendant committed the robbery while using a “deadly weapon.” It did not incorporate the general disjunctive language “deadly or dangerous” utilized in former section 211a. The selection of the technical term “deadly weapon” is not to be disregarded as irrelevant surplusage. In Brookins, we rejected the People’s invitation to interpret the Legislature’s use of the undefined term “deadly weapon” in section 667.7 in a manner inconsistent with its established meaning. “[Ujnder well-established judicial interpretation,” the undefined term “ ‘deadly weapon,’ . . . does not include unloaded guns in the absence of facts showing actual use of the unloaded gun as a bludgeon. Given its well settled meaning we must presume that the Legislature used the term in its technical sense and in the consistent manner in which it has been interpreted. [Citations.]” (
Defendant’s argument that he had no incentive to challenge the use of the term “deadly weapon” in his 1966 conviction is without merit. Both defendant and the state had an important incentive to contest the designation of his first degree conviction as based on the use of a “deadly weapon,” rather than the generalized disjunctive language of section 211a. At the time of this conviction, section 1203 provided that “[e]xcept in unusual cases where the interest of justice demands a departure from the declared policy, no judge shall grant probation to any person who shall have been convicted of robbery, . . . and who at the time of the perpetration of said crime . . . was himself armed with a deadly weapon . . . .’’As recognized in People v. Raner, supra,
On appeal, we must “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Ruiz (1988)
Multiple Life Sentences
Defendant argues that he should not have been sentenced to more than one life term based on the same prior convictions and that the court erred in imposing two consecutive life sentences for counts two and three. We disagree.
In People v. Decker (1988)
The reasoning in Decker is equally applicable to section 667.7, which speaks not of enhancement but of a separate term of imprisonment for recidivist conduct. Both section 667.51, subdivision (d) and section 667.7 impose an indeterminate life sentence for specified offenses where a defendant has suffered two or more prior convictions and/or imprisonments for the offenses. Each of defendant’s two new convictions for assault with a deadly weapon causing great bodily injury, which involved separate victims and separate locations, independently qualified for punishment under section 667.7.
Defendant’s reliance on People v. Allen (1986)
In addition to properly sentencing defendant on counts II and III to two consecutive life terms pursuant to section 667.7, the court imposed a determinate sentence on each of those same counts and ordered the terms to run concurrent with the life terms. The court also imposed a determinate sentence of ten years for the same two prior serious felony convictions he relied on for imposing the life terms specified in section 667.7. Respondent concedes that this was error.
Section 667.7, subdivision (a)(1), provides in part that “[a] person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, whichever is greatest . . . .”
The sentencing scheme for recidivist offenders set forth in section 667.7 is two fold. It first provides that defendant will serve a life sentence rather than the determinate sentence he would otherwise receive but for his status as a repeat offender. As noted earlier, the life sentence provided for in section 667.7 is a term of imprisonment rather than an enhancement. (People v. Decker, supra,
The court was correct in arriving at an aggregate determinate term which included the determinate sentence he would have imposed on counts II and III and all applicable enhancements, but he was not authorized to impose those portions of the aggregate determinate term that pertained to counts II and III. Such aggregate term merely serves the purpose of enabling the Board of Prison Terms to arrive at defendant’s parole eligibility date under the provisions of sections 667.7 and 3024.
A sentence not authorized by law is subject to correction whenever the error comes to the attention of the trial court or a reviewing court. (People v. Serrato (1973)
The judgment is modified. Defendant’s determinate sentence on counts II and III, and the two 5-year enhancements imposed for the prior serious felony convictions are stricken. The trial court is ordered to prepare a corrected abstract of judgment in accordance with this opinion and will send a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
Marler, J., concurred.
Notes
Unless otherwise indicated, all undesignated statutory references are to the Penal Code.
At trial, an amendment was granted to allege section 245, subdivision (a)(2) and the allegations of “with a deadly weapon” and “and with means of force likely to produce great bodily injury” were stricken as to counts II and III.
Defendant’s first attorney was relieved due to conflict. He was replaced by attorney Hurley who was relieved on September 25, 1987. On Monday, September 28, 1987, defendant was granted a continuance to September 30 to allow time to review proceedings with new counsel. On September 30, Swartz accepted appointment.
In his written report, Wilson noted that defendant claimed no memory of the episode leading to the charges. Wilson indicated that defendant had difficulty in focusing and that test results suggested organic brain syndrome, possibly associated with a traumatic head injury from a motorcycle accident. A possible psychotic disorder was indicated. Wilson concluded that defendant understood the charges against him, was aware of possible defenses and penalties to which he might be subject. He appeared to pass the “comprehension” prong of the legal test of competency. Wilson agreed with Swartz that meaningful communication was not possible regarding options available for his legal defense due to his inability to focus long enough to listen. Wilson concluded that defendant was not competent to stand trial due to his inability to use information in a rational way.
The court correctly noted that once the issue of competency is raised it is inappropriate for defendant to waive it.
See footnote 1, ante, page 444.
In making his due process argument defendant makes a brief reference to equal protection. None of defendant’s authorities involves or discusses equal protection concerns and he makes no separate argument regarding equal protection. We conclude from this that his argument is essentially a due process challenge to the statutory scheme.
The presumption of competence set forth in Penal Code section 1367, subdivision (f), like the presumption of innocence codified in Penal Code section 1096 and the presumption
Evidence Code section 603 provides: “A presumption affecting the burden of producing evidence is a presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied.”
Evidence Code section 604 provides: “ The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”
Until 1973, if an individual was found incompetent to stand trial he was committed to a state hospital or other treatment facility until he attained the capacity to stand trial. (Stats. 1968, ch. 599, p. 1270.) If he never attained the requisite competency, his commitment operated as a life sentence. It made no difference whether he was charged with murder or petty theft.
In 1973 the Supreme Court put an end to the then existing scheme for commitment of incompetent criminal defendants by holding in In re Davis (1973)
At the time Davis was decided long-term involuntary commitment under the EPS Act was imposed only upon individuals categorized as “gravely disabled.” (Stats. 1971, ch. 1593, § 366, p. 3335.) However, the EPS Act contained no specific provision for commitment of criminal defendants who were found incompetent to stand trial. While such defendants may have fit into the category of persons who are a danger to themselves or others so that short term commitments under the EPS Act were possible, they would not necessarily fit into the category of “gravely disabled" persons necessary for long-term commitment. Thus, if the
The Legislature responded by enacting a new commitment scheme which became effective in September 1974 as an urgency measure. (Stats. 1974, ch. 1511.) In so doing the Legislature addressed the difficult problem of integrating and resolving the conflicting concerns of protecting society from dangerous individuals who are not subject to criminal prosecution, preserving a libertarian policy regarding the indefinite commitment of mentally incompetent individuals who have yet to be convicted of criminal conduct, and safeguarding the freedom of incompetent criminal defendants who present no threat to the public. As a result of this effort, criminal defendants found incompetent to stand trial are now subject to an initial commitment for a definitely limited period not to exceed three years. Thereafter, any further commitment may occur only if the defendant falls within the new standards set forth in the LPS Act. (See Parker, California’s New Scheme for the Commitment ofIndividuals Found Incompetent to Stand Trial (1975) 6 Pacific LJ. 484.)
Evidence Code section 502 provides: “The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”
Section 1368, subdivision (a), provides: “If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.”
Section 1368, subdivision (b), provides: “If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to sections 1368.1 and 1369. If counsel informs the court that he believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.”
Section 1369, subdivision (a), provides: “The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital.
“The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment.”
See footnote 1, ante, page 444.
As we held in People v. Logan (1987)
Headnote No. 6 in People v. Raner, supra,
Section 667.7 subdivision (a) (1) provides: “A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046, whichever is greatest. The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison im
Penal Code section 3046 provides: “No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater. Where two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he or she has served at least seven calendar years, or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, on each of the life sentences which are ordered to run consecutively, whichever is greater. The Board of Prison Terms shall, in considering a parole for a prisoner, consider all statements and recommendations which may have been submitted by the judge, district attorney and sheriff, pursuant to Section 1203.01, or in response to notices given under Section 3042, and recommendations of other persons interested in the granting or denying of the parole. The board shall enter on its order granting or denying parole to these prisoners, the fact that the statements and recommendations have been considered by it.”
Section 667, subdivision (b), provides: “This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this section to apply.”
Concurrence Opinion
I concur in the judgment and opinion except for part IV, as to which I dissent.
In part IV the majority opinion upholds the judgment of sentence predicated upon the finding that defendant was a habitual criminal within the meaning of Penal Code section 667.7, subdivision (a) and therefore subject to a term of life imprisonment.
In People v. Brookins (1989)
Defendant was convicted in 1966 pursuant to the definition in former section 211a that “[a]ll robbery which is perpetrated by torture or by a
The first difficulty with this reasoning is that there is a line of cases interpreting former section 211a which does not make this distinction. In People v. Raleigh (1932)
The second difficulty is that the reasoning of the majority opinion is built on an unsound premise. Because “pistol” is not qualified by “loaded” in the charging document, the success of the majority theory is dependent, not only upon equating “deadly weapon” with loaded pistol, but upon equating conviction for use of a deadly weapon with conviction for use of a loaded pistol. This second step is unexamined and cannot be taken. Under former section 211a a first degree robbery was committed regardless whether the weapon employed was “dangerous” or “deadly”, hence it was of no consequence to a conviction whether the weapon was loaded.
I amplify these arguments.
Section 667.7, subdivision (a)(1) requires imposition of a life term when a defendant has served two prior prison terms meeting the criteria of section 667.7, subdivision (a). The application of this section to defendant is dependent upon the finding he was convicted of a 1966 “robbery involving the use of. . .a deadly weapon ” as that term is employed in section 667.7, subdivision (a). In this court’s decision in People v. Brookins, supra, 215
We said that “[ujnder this settled meaning, an unloaded firearm not used as a bludgeon meets neither definition and hence is not a deadly weapon.” (Brookins,
As Brookins points out, in Raleigh the terms “dangerous” and “deadly” were treated as “synonymous.” For that reason it was said of Raleigh: “There can be no doubt at all, in this state, that an unloaded gun can be a ‘dangerous’ or ‘deadly’ weapon within the meaning of section 211a.” (People v. Ward (1948)
Because of these cases the CALJIC instructions likely applicable during the period of defendant’s 1966 conviction make no distinction between dangerous and deadly weapons. CALJIC No. 210-B (rev. ed. 1946) provided simply, based upon Raleigh, supra, that: “A ‘dangerous or deadly weapon’, as the term is used in the law [of § 211a] means any weapon, instrument, or object that is capable of being used to inflict great bodily injury . . . .” The succeeding instruction, CALJIC No. 9.13 (3d ed. 1970), relying on Raleigh, supra, and Graham, supra, instructed the jury inter alia that: “A weapon such as a gun, dirk or blackjack may be said as a matter of law to be a dangerous or deadly weapon.”
And that is exactly how the prosecuting attorney in this case viewed the law of former section 211a. Although not authority for its meaning, it provides anecdotal evidence consistent with the case law and the CALJIC instructions. He told the jury: “In order to come within [§ 667.7] we have to show . . . that he was convicted of a robbery in 1966 involving the use of a firearm, or a deadly weapon. I believe, is the terminology, involving the use of a firearm or a deadly weapon or firearm.” He also told them: “With regard to . . . 667(a) .... There [are] two kinds of robbery. One is what we call strongarm robbery. Where they just come up and physically take something from somebody. The other is using a deadly weapon, either a gun or a knife and coming up and saying, ‘Give me your money.’ Classic armed robbery.”
None of this is addressed in the majority opinion. Their sole reliance, as noted, is upon People v. Raner, supra. In Raner the defendants were charged, in a manner parallel to this case, “with the crime of robbery while armed with a deadly weapon, to wit, a sawed-off .22 caliber rifle.” (86 Cal.App.2d at pp. 108-109.) They “pleaded guilty to the charge of robbery but denied having been armed, and waived a jury trial on that issue.” (
On appeal the court did distinguish between “unloaded guns as deadly weapons and as merely dangerous weapons,” the former being the case only when the gun “was used or threatened to be used as a bludgeon.” {Raner,
Thus Raner essentially has to do with eligibility for probation. “We reach the conclusion, therefore, that for the purposes of sections 211a and 1203, . . . the defendants were armed with a dangerous weapon but not with a deadly weapon. The trial court’s determination that the offense was robbery in the first degree was therefore correct (Pen. Code, § 21 la), although based upon the erroneous premise that defendants were armed with a deadly weapon. [But] Defendants were in no way prejudiced by this error . . . and we do not understand either of them to seriously argue that it is ground for reversal of the judgment. On the other hand, the court’s conclusion that under section 1203 it was powerless to grant probation was not only erroneous, since the prohibitory provisions of that section are applicable only where the defendant was armed with a deadly weapon, but . . . deprived defendants of the substantial right,... to have their applications for probation considered and determined by the court in the exercise of its legal discretion.” (
The flaw in the majority reasoning is that if the Raner conviction were at issue in this case and the sole evidence tendered were the record of the charge and conviction in that case we could not conclude that the gun employed was loaded. The majority opinion does not discuss this anomaly. Rather, it argues that the defendant had an incentive in the 1966 action to litigate whether the pistol was loaded, i.e., whether it was “deadly” or merely “dangerous,” because of the provision of section 1203 that allowed probation in the discretion of the court only in cases where the weapon employed in the robbery was “dangerous.” For that reason, in Raner, although the conviction was affirmed, the judgment of sentence was reversed and the case remanded so that the court could “hear and determine defendants’ . . . applications for probation . . . .” (
The majority’s premise is that, based upon Raner, the defendant had an incentive to “litigate” whether he was guilty “as charged” of using a “deadly” weapon because if so “convicted” he would be ineligible for probation.
For this reason the question of probation has nothing to do with this case. Eligibility for probation under section 1203 need not be plead and proved. For that reason there is no necessary connection between the charge and eligibility for probation. And a prosecutor would have no incentive to charge the use of a “deadly weapon” for purposes of invoking section 1203. Thus, the issue is not whether the defendant had an incentive to litigate the distinction between a loaded and unloaded gun in the 1966 action for purposes of probation but whether that distinction was embodied in the charge and conviction which constitute the only record before this court. With respect to that question, we are in a posture identical to the Brookins case. “Since in this case the prosecution adduced no facts in the record from which we can determine the [pistol] used by the defendant in the [1966] robbery was loaded (and thus per se deadly) or was used in a lethal manner, we cannot say a deadly weapon was used in the commission of the robbery,” as required by section 667.7. (Brookins, supra,
I would reverse the judgment of sentence finding the defendant to be a habitual criminal.
A petition for a rehearing was denied May 13, 1991, and appellant’s petition for review by the Supreme Court was denied August 1, 1991. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
All references to statutes are to the Penal Code.
Hereafter I use term “loaded weapon” to refer to these disjunctive possibilities.