Guenter H. Schoeller v. Walter Dunbar, Director, California Department of Corrections

423 F.2d 1183, 1970 U.S. App. LEXIS 10592

Opinions

KILKENNY, Circuit Judge.

Footnotes

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Appellant is critical of the judgment of the District Court denying his petition for a writ of habeas corpus.

In May, 1964, appellant was charged, by indictment, with violating Sections 187 (murder) and 217 (assault with a deadly weapon with intent to commit murder) of the California Penal Code. Appellant’s privately retained counsel arranged for his examination by a private psychiatrist. After reviewing these findings, appellant and his counsel concluded that there was no insanity defense available and that appellant was mentally competent to understand the nature of the proceedings against him and to cooperate in his defense with counsel. Subsequent to the examination, appellant, with his counsel present, withdrew his previous plea of not guilty and entered a plea of guilty to violating Sec tion 187. In turn, the prosecution dismissed the Section 217 charge. At the same hearing, it was agreed that appellant was entering his guilty plea to a second, rather than a first, degree murder charge.

Subsequently, on the trial judge’s own motion, and before sentence, a hearing was held on whether appellant’s plea of guilty was voluntarily made and on whether he was suffering from mental incapacity. Appellant and his counsel appeared and stated in open court that the plea was not the result of any mental infirmity on the part of the appellant and that there was no basis, in fact, for an insanity plea or a hearing under Section 1368 of the Penal Code.¹ evertheless, to be abundantly certain of his position, the state trial judge placed appellant in Vacaville, a state institution, for diagnosis and recommendation under the provisions of Section 1203.03 of the Penal Code. On receipt of the report from this institution, and after another hearing,² the judge sentenced appellant to state prison for the term prescribed by law.

The only evidence in the record which would point toward the possibility of appellant’s mental imbalance at the time he bargained for a dismissal of one count in the indictment and for a reduction from first degree to second degree murder in the other is that he had suicidal tendencies, exhibited signs of depression and, according to his attorney, was “medically ill in a medical sense, but ‘competent to stand trial.’ ” There is nothing in the record to indicate that appellant, at the time of the entry of his plea of guilty, was unable to understand the nature of the charge against him or that he was unable to fully cooperate with his attorney. Without question, appellant, at the time of the entry of his plea, had the ability to consult with his lawyer with a reasonable degree of rational understanding and had a rational, as well as a factual, understanding of the nature of the proceedings against him. His “I don’t care” attitude was clearly the result of a deep repentance resulting from the murder of his beloved and the shooting of another. The killing with which appellant was charged was the climax to an involved love affair. We do not believe it a strange reaction for a normal person to go into a depression and think of committing suicide when, in a jealous rage, he kills the girl he loves. Appellant, at the time of the killing, was a high school principal and working toward a Masters Degree in Comparative Literature. His tests at Vacaville, when compared with others there tested, revealed that he had an exceptionally high IQ. He was classified as one of “superior intelligence”, and not suffering from “intellectual impairment.” In this factual atmosphere, neither his suicidal tendencies, nor his depressions, could have caused him to be substantially unable to comprehend the nature of the charge or unable to cooperate with his attorney. On his return from Vacaville, the appellant would will ingly have accepted probation. For that matter, appellant’s attorney, by lengthy argument, tried to convince the court that probation was proper.³ From this footnote, it is crystal clear that the appellant and his attorney could probably have withdrawn the plea of guilty even as to the second degree charge as late as the final hearing. Appellant’s dissertation at that time demonstrates a mental capacity equal to, if not above, the average human being.

We find nothing in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which even remotely suggests that the hearings held in the state court were not constitutionally adequate, nor does Rhay v. White, 385 F.2d 883 (9th Cir. 1967), suggest a contrary result. Pate presents a factual setting entirely foreign to the one before us. There, the respondent, who was convicted of murdering his common-law wife, had a long history of disturbed behavior, had been confined as a psychopathic patient and had committed acts of violence, including the killing of his infant son and an attempted suicide. Four defense witnesses testified that respondent was insane. The trial judge declined rebuttal medical testimony on respondent’s sanity, deeming sufficient a stipulation that a doctor would testify that when respondent was examined a few months before trial, that he knew the nature of the charges and could cooperate with his counsel. The trial judge completely rejected respondent’s claims of insanity. Here, the appellant took exactly the opposite position. Here, the appellant insisted that he was sane, insisting on changing his plea from not guilty to guilty, had no previous record of irrational conduct and produced no substantial evidence that he was possibly insane, incapable of understanding the nature of the charges against him, or assisting in his own defense. In Pate, the Court failed to grant respondent a hearing. 383 U.S. p. 385, 86 S.Ct. 836. The exact opposite is true in this case. Here, it could well be argued that the court was overly zealous of appellant’s rights to competency hearings and, sua sponte, ordered appellant to Vacaville for observation and report. We ask what more could the court do under the existing circumstances? Appellant insisted that he had the required mental capacity and even refused to cooperate in many of the court’s suggestions in connection with examinations.

We do not believe that Pate requires the district court, in every, habeas corpus proceeding, to limit its inquiry to the record which might have been made in the state trial court. The majority in Pate thought it best to so limit the inquiry where the defendant had consistently- claimed his insanity, and another hearing could not be held for over six years after- the fact. We are not here faced with the six year problem. Appellant was sentenced on November 20, 1964. As early as March 9, 1965, he was seeking relief in the California State Court of Appeals under Rule 31(a) of the California Rules of Court. This relief was denied on June 2, 1965, after an evidentiary hearing. He then asked the California Supreme Court for a hearing, his petition being denied on July 8, 1965. Then, on May 4, 1967, he filed the present petition.

In our circumstances, a number of Ninth Circuit cases not only approve, but seem to require, the district judge to hold a hearing on the issue of the validity of the- guilty plea. Jones v. United States, 384 F.2d 916 (9th Cir. 1967); Castro v. United States, 396 F.2d 345 (9th Cir. 1968); United States v. Tweedy, 419 F.2d 192 (9th Cir., 1969). Here, the appellant asked for and received a full blown evidentiary hearing in district court. He called his own witnesses and the state called theirs, including at least one of the original doctors, Mr. Berman, the appellant’s original attorney, and the Superior Court judge who conducted the hearing. Appellant is in no position to now claim that the trial judge in district court should have limited the hearing to the transcript of the proceedings occurring in state court. In any event, the district judge followed the procedure outlined in Jones, Castro and other cases.

The district court, in its evidentiary hearing, thoroughly explored the state court’s proceedings. In his comprehensive decision, consisting of thirteen typewritten pages, he clearly enunciates the evidentiary facts, as well as the controlling decisional and statutory law. It would serve no useful purpose to further elaborate on his definitive findings and solid conclusions. Beyond question, they are not clearly erroneous. Aside from that, our independent examination of the state court record convinces us that the appellant had the required mental capacity at the time he entered his plea of guilty and at the time he was sentenced.

We affirm for the reasons stated in the decision, findings and conclusions of the trial judge and on our own analysis of the state court record.

BARNES, Circuit Judge, concurs.

District Judge for the District of Oregon at time of argument.

1

. “THE COURT: The only thing that concerns me is whether or not that original plea was acceptable from a legal viewpoint.

Do you, Mr. Berman,* — you are noi [sic] longer his attorney, but you were then. Now, you have discussed this with me and you have advised me on more than one occasion previous to this time that the medical information that you had was such that there was no basis for a plea of not guilty by reason of insanity, is that so?

MR. BERMAN: That is correct.

If Your Honor please, both the medical records, which I examined from the County Hospital from his previous commitment back in the latter part of May and the early part of June, plus my own psychiatrist, Dr. Faircloth, both of them indicate that there was no basis whatsoever for an insanity plea. However, I did advise the Court that I felt the man was mentally ill in a medical sense.

DEFENDANT SCHOELLER: I do not accept this. I will under no circumstances plead insanity.

THE COURT: We understand this.

DEFENDANT SCHOELLER: And of course, I agree that certainly I was not insane. * * * ”

* Appellant’s retained attorney.

2

. November 20, 1964.

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“THE COURT: Does he want probation? I thought he wanted to be executed. Does he want probation?

MR. BERMAN: I certainly think he is eligible for probation.

THE COURT: Does he want it?

MR. BERMAN: Yes, Your Honor.

THE COURT: Well, he has changed his mind then.

DEFENDANT SCHOELLER: Your Honor, perhaps I may be allowed to say a few words to that, sir.”

“DEFENDANT SCHOELLER: I would like to draw attention to something which happened while I was still in Vacaville earlier this week.

A newspaper report appeared in which it was reported in a deplorably distorted fashion of the facts that, indeed, I had been recommended for probation, but had countered this recommendation with a renewed appeal or desire to appeal to the Court for capital sentence.

This is completely in error.

The statement in question was made many weeks ago and it was born out of a mental condition which I at this time can no longer even remotely describe as a sound one. It is not so bad that in colloquist [sic] speaking it has made me look like some sort of a nut, but the worse part of it is the people at Vacaville, the staff members at the Department of Corrections who have genuinely tried to help me and evaluate the stiuation, were also somewhat derisively treated in this article, and I would like to counter this with an expression of profound gratitude for what they have done. Specifically in terms of probation, if I should be granted probation I would accept it with profound gratitude and full cognizance of the responsibility it places upon me in terms of my obligation to justify the confidence thus demonstrated.

However, at the same time I am sober enough to realize that it is not merely a question of objective analysis of enlightened psychiatric facts and their interpretation, but also legal tradition and certain moral values.

Therefore, I must at this time be prepared for anything, although at the same time I do entertain a certain if modest amount of hope for something better.”

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