People v. Stankewitz

NEWMAN, J., Dissenting.

I believe that the motion for a hearing on appellant’s competency to stand trial (Pen. Code, §§ 1367, 1368) was properly denied. The majority conclude that such a hearing was required by Dr. Glenn’s testimony in light of the statement in People v. Pennington (1967) 66 Cal.2d 508, 518-519 [58 Cal.Rptr. 374, 426 P.2d 942], that a psychiatrist’s sworn opinion that the accused is incapable of assisting in his defense or cooperating with counsel raises doubt of competency sufficient to require hearing. Yet the subsequent opinion in People v. Laudermilk (1967) 67 Cal.2d 272 [61 Cal.Rptr. 644, 431 P.2d 228] teaches that doubt of competency must be based on “all the pertinent evidence before the trial court” (67 Cal.2d at p. 286) and not arrived at “by a process of fragmentizing the [expert’s] report or fastening attention to isolated parts of it” (id., at p. 288). “Genuine doubt, not a synthetic or constructive doubt, is the measuring rod.” (De Kaplany v. Enomoto (9th Cir. 1976) 540 F.2d 975, 982-983 (in bank).)

The Glenn testimony repeatedly based the doubt of competency on appellant’s stating that he would believe advice from a private attorney —but not from the public defender—that the prosecution’s evidence was sufficient to convict him.1 Thus the conclusion of this doctor was *97fatally undermined by appellant’s ensuing statement, through counsel, that he would reject the advice of any lawyer who refused to contest his identity as the offender rather than presenting only a diminished capacity defense.

It is suggested that the effect of that statement was simply to enlarge the doubt suggested by the expert to encompass an inability to cooper*98ate with any lawyer. That theory is contradicted, however, by Dr. Glenn’s flat statement that “at this point in time, based upon this examination, I would feel that he could cooperate with a private attorney.”

The majority argue, “Had either the trial judge or the prosecution believed that appellant’s later statements negated Dr. Glenn’s opinion, Dr. Glenn could have been recalled to determine if he still adhered to that opinion.” (Ante, p. 93.) The failure of the public defender to request recall, despite his ardent support of the motion and his familiarity with Dr. Glenn’s views from a prehearing interview, indicates that further testimony would not have filled the gap left by appellant’s recantation. There was, I submit, no substantial evidence of incompetency to stand trial.2

After expounding the need for a competency hearing the majority point to “strong indications of a breakdown in the relationship between appellant and his state-appointed trial lawyer” and suggest that “[t]he court may not have been required to hold a full competency hearing if the problem could have been resolved by a substitution of counsel.” (Ante, p. 94.) Justice Broussard, concurring, states he would “emphasize the failure of the trial court to take action to prevent a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant’s right to effective assistance of counsel. (People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710]; People v. Williams (1970) 2 Cal.3d 894, 905 [88 Cal.Rptr. 208, 471 P.2d 1008].)”

The only attorney-client differences shown in the record, however, were over whether to present the identity defense demanded by appellant or the diminished capacity defense that counsel preferred. As Williams points out, disagreement about trial tactics does not necessarily call for substitution; and “[w]hether to call certain witness is generally a matter of trial tactics.” (Id., at p. 905.) Appellant made clear to the court when he requested substitution on July 5 and August 31 that his only objection to the public defender was the latter’s refusal to present an identity defense through witnesses whom appellant wished *99to have called. No other “breakdown” in the attorney-client relation is apparent in or suggested by the record.3

Further, the in camera hearing in connection with the August 31 motion appears to have convinced the court, with reason, that the identity defense was so untenable that any competent substitute counsel would have rejected it. A trial court should not be required to discharge appointed counsel for refusal to accept a strategy that the court itself has good cause to believe would not be viable.

Richardson, J., concurred.

Dr. Glenn testified: “He then stated that there definitely was not enough evidence to convict him. And I followed up on that statement by asking him: What if your attorney said that there was enough evidence to convict you? He made the clear statement that *97he would not believe him. That led us into the—he started talking about the Public Defender’s Office, and that the Public Defender was different than a regular attorney, that he didn’t trust the Public Defender to a point, that he might be working for the District Attorney, and that the Public Defender gets most of his information from the District Attorney, that they work in the same office, they drink coffee together, and that they smile at each other after the proceedings. And I asked, you know, what that meant to him, and to him that means that there was the intimation that there might be some kind of a collusion. I then asked—we talked about the difference between the Public Defender, and he mentioned a Mr. Roger Nuttall, a private attorney, and stated that if he had a private attorney, that kind of thing wouldn’t go on. And I asked him what if he had—if he had a private attorney, and that attorney told him a similar thing, that there was enough evidence, for example, to convict him, and he stated that he would believe a private attorney where he would not believe a Public Defender, because of the things that I had mentioned before. He stated private attorneys have more knowledge than Public Defenders, and that a Public Defender is an appointed attorney to him, not someone that he has paid for or asked for himself. He made some specific statement that he does not trust Mr. Sciandra, and then went on to state that the Judge was in it, too, because the Judge could have appointed Mr. Nuttall, if he had wished, but the Judge was giving him a railroad job, and that he wasn’t giving him an attorney that had enough knowledge.”

“Q: Can you render an opinion to that hypothetical question? A: Yes. I believe he has the mental capacity to analyze the set of facts. What I feel he is lacking is the ability to take that analysis related to the fact that you have stated, or this hypothetical person and apply them to—to his defense, because he stated can I switch back to the real person? THE COURT: Yes. MR. SCIANDRA: Yes, I think it’s obvious—THE COURT: That’s who we’re talking about, so it’s all right with me. MR. ARDAIZ: Hypothetically speaking, of course. THE WITNESS: Because he stated to me, you know, flatly that he believes, that he truly believes, that there is not enough evidence to convict him, and that if his attorney, the Public Defender, states that there is, he would not believe him. And if another attorney, privately appointed, told him that same thing, he would believe him, and that’s where the delusional system and paranoid thinking comes into effect. The paranoid feelings are related fairly specifically to the Public Defender. Q: Doctor, considering the opinion that Mr. Stankewitz has the conditions you testified to, do you have an opinion as to whether he would be able to rationally aid counsel in his own defense? A: Current counsel? Q: Yes. A: Yes, I do. I don’t think he will be able to rationally plan his defense with this counsel. Q: Okay. If a private attorney did give him his opinion that there was enough evidence to convict him, is there anything in your examination which would indicate that Mr. Stankewitz would then develop the same paranoid feelings against this attorney? A: No, there is nothing in my examination that would indicate that. Q: Would that be revealed in further examination? A: Yes. Q: So, it’s your opinion that if there was further evaluation, you could come to a determination as to whether or not he would be able to rationally cooperate in his own defense with even a private attorney? A: Well, at this point in time, based upon this examination, I would feel that he could cooperate with a private attorney.”

Subsequent events corroborated the absence of inability to cooperate with counsel. Appellant allowed himself to be examined by the defense psychiatrists and, at the beginning of the defense case, declined an invitation to assert the patient-psychotherapist privilege against defense-expert testimony. The record indicates that he consulted with counsel at appropriate times and behaved properly while the jury was present.

In Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, relied on by the majority, the trial court “summarily denied the motions [for substitution], making no adequate inquiry into the cause of Brown’s dissatisfaction with his counsel or taking any other steps which might possibly lead to the appointment of substitute counsel in whom Brown could repose his confidence.” (Id., at p. 1169.) Here the requirements for such an inquiry (see People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]; People v. Lewis (1978) 20 Cal.3d 496 [143 Cal.Rptr. 138, 573 P.2d 40]) were fully satisfied.