Opinion
As Modified June 16, 1978.
Opinions on pages 734-751 omitted.
HEARINGS GRANTED [*]
Paul Arthur Turner, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb, II and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.
BEACH, Associate Justice.
Mary Ann Henderson was found dead in the agricultural field of Reseda High School. She had been brutally beaten, raped, and possibly sodomized before being killed. After a jury trial, appellant was found guilty of first-degree murder; in the second part of the bifurcated proceedings, [146 Cal.Rptr. 749] the jury found appellant was sane at the time of the commission of the crime. Stephens appeals from the judgment of conviction.
Appellant was sentenced to state prison for the term prescribed by law on August 2, 1977. The court recommended Vacaville or the Deuel Vocational Institute. On August 26, on the court's own motion, the order of August 2 was vacated; appellant was ordered committed to the California Youth Authority pursuant to section 707.2 of the Welfare and Institutions Code; and probation and sentencing was continued to December 6, 1977. The validity of the August 26 order is one of the issues on this appeal. This court directed appellant and respondent to address the question of the effect of that order in their briefs.
FACTS:
Guilt phase of the trial.
Fifteen-year-old Mary Ann Henderson had gone to a football game at Reseda High School on Friday night, September 24, 1976. She was seen kissing and hugging appellant. Witnesses saw her walking away from the football area with appellant about 10 p. m. The administrative dean at Reseda High School saw appellant and a girl he could not identify about 10:40 p. m. walking arm in arm.
The evidence shows that the victim died of manual strangulation that occurred at approximately 3 a. m. on September 25. However, prior to the time of strangulation, she received several blows on her head, some with a wooden board and others by fists. There was forcible trauma to her vagina, and sperm indicated that intercourse had taken place recently before death. There was also a fresh abrasion at the anal orifice. Pubic hair similar to that of appellant and dissimilar to that of the victim was combed from the victim's pubic area. The victim's blood type (group A and PGM type 2-1) was found on the board used to beat the victim and on appellant's socks. There was also a positive test for blood on the inside fly of appellant's trousers and a light trace on the inside of his shoes. A weak test was present on the towel used to wipe appellant's shoes the day after the killing.
Dr. Choi explained that the victim lived for awhile after the head injuries and died sometime between 11 p. m. and 3 a. m.; he estimated that the time was nearer to 3 a. m. Appellant was last seen with a girl at about 10:40 p. m. He was then given a ride by Richard Burton, a man he had never met, at about midnight. Burton orally copulated appellant and drove him to various locations requested by appellant, including a location in Hollywood where appellant hoped to find his girlfriend. The two men were returning to the Valley, where appellant was going to spend the night with Burton, and appellant asked Burton to return to the high school because he had to get something from his locker. Appellant returned without books. The next morning, Burton cleaned appellant's shoes; the towel used for the cleaning and appellant's shoes and socks were later given to the police.
There is no direct evidence of appellant's whereabouts between 10:40 and midnight. The People's theory was that he attacked the victim during that time interval and returned to strangle her about 3 a. m. the next morning.
Appellant was arrested at his brother's house Sunday morning. The investigators tape-recorded a conversation with him at that time. The tape and a transcript thereof were introduced in evidence. Appellant admitted being with the victim that evening but said that he left between 10:15 and 10:30. Appellant further claimed that Burton picked him up right after he called his girlfriend, at about 10:30. He explained his return to Reseda High School as a way of fleeing from the homosexual Burton and trying to find his brother, whom he apparently expected to find at the swings near Reseda High School at 3 a. m. The tape in no way amounts to a confession; appellant [146 Cal.Rptr. 750] denied that he had anything to do with the murder.
One of appellant's girlfriends testified that appellant called her at 12:18 that evening. He claimed that he called her between 10:15 and 10:30.
At the probation and sentence hearing on August 2, appellant desired to address the court. At that time he stated that the victim was not alive when he went back. He admitted raping her and stated that he wore green shorts as underwear; the green shorts were found under the victim's body. At the hearing, he told the court that he went back to see if he did what he thought he had done; he denied strangling her at 3 a. m. He remembered throwing things; the victim's purse and its contents were found strewn in the area.
The insanity phase.
Dr. Nicholas Langer testified that "defendant is a schizophrenic hebephrenic type, and, at the time of the commission of the crime, he was neither psychiatrically nor psychologically sane." Dr. Langer gave a detailed history of appellant to support his conclusions.
Dr. Ronald Markman testified that appellant knew the nature and quality of the act he was committing and stated that he could not classify appellant's mental state as a schizophrenia or a major psychotic condition. He was vigorously cross-examined by appellant's counsel.
Neither the People nor the defense counsel made any statements to the jury regarding the insanity issue. After several days, the jury found that appellant was sane at the time of the commission of the crime.
CONTENTIONS ON APPEAL:
1. The prosecutor committed misconduct in referring to appellant's failure to testify.
2. Defense counsel did not effectively represent appellant during the sanity phase of the trial.
3. The order of August 26 was probably invalid.
DISCUSSION:
1. There was no prosecutorial misconduct.
Appellant contends that the prosecutor, when arguing to the jury, committed prejudicial misconduct under Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, when he stated: "So there you have the only sample we can give you of the defendant's credibility. Also the admissions that he made." Appellant's counsel objected and made a motion for mistrial, which was denied, based on the prosecutor's alleged comment on appellant's failure to testify.
The prosecutor had been going over the evidence of appellant's conversation with the police upon his arrest. Many of appellant's statements, in view of the evidence as a whole as well as just looking at his statements objectively, seemed unreasonable and improbable. In that context, the comment of the prosecutor must be viewed as a comment on the state of the evidence, which is "entirely proper." (People v. Bethea, 18 Cal.App.3d 930, 936, 96 Cal.Rptr. 229) and not a reference to appellant's failure to take the stand. The comments in the instant case fall under the "well-established" rule that "although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (Citations.)'. . . ." (People v. Vargas, 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 18, 509 P.2d 595, 562.)
Unlike the situation in Vargas, supra, the comment in the case at bench does not connote lack of a personal response by the accused himself.
2. Lack of argument by defense counsel during the sanity phase of the trial did not deprive appellant of his right to counsel.
Appellant argues that the case should be reversed for a new trial on the issue of sanity because his trial counsel made no effort to argue the sanity phase of the trial to the jury. Appellant further argues that the rule regarding competent counsel set forth in People v. Ibarra, 60 Cal.2d 460, 466, 34 Cal.Rptr. 863, 386 P.2d 487, may soon be replaced by a new standard; he contends the Supreme Court will adopt the standard of reasonably competent assistance of counsel.
Ibarra, supra, is presently the standard declared by the Supreme Court; [146 Cal.Rptr. 751] we are bound by that determination. However, even if a higher standard is used, we cannot find that trial counsel in this case was incompetent merely for failing to argue the sanity issue before the jury. Appellant's psychiatric witness, Dr. Nicholas Langer, testified at great length as to his conclusions about appellant and the reasons therefor. Counsel vigorously cross-examined the People's psychiatric witness, Dr. Ronald Markman. The court had preinstructed the jury prior to the testimony of the psychiatrists. The issues were clear and the testimony was clear. We can find no harm whatsoever in counsel's failure to argue the sanity issue to the jury.
Compare In re Saunders, 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472 P.2d 921, in which a crucial defense was not even presented. In the case at bench, the questions were competently presented to the jury. Counsel's decision not to argue can be considered tactical.
The argument by counsel in Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985, 987, 994, is clearly distinguishable. In any event, a decision of the United States Court of Appeal, District of Columbia Circuit, is not binding upon us.
3. The order of August 26 was invalid.
On August 2, 1977, the trial court denied various motions by defense counsel, including a motion for commitment to the California Youth Authority, and sentenced appellant to state prison for the term prescribed by law. Appellant filed his notice of appeal on that date. On August 26, the trial court ordered the August 2 order vacated and committed appellant to the California Youth Authority pursuant to Welfare and Institutions Code section 707.2.
Welfare and Institutions Code section 707.2 provides:
Appellant and respondent agree that the order of August 26 is void in that the trial court lost its jurisdiction as to this matter when the notice of appeal was filed. (Witkin, Calif. Criminal Procedure, (1963) § 637, at p. 628.) However, appellant contends that the trial court did err in not complying with section 707.2 of the Welfare and Institutions Code on August 2, and therefore the judgment of August 2 must be reversed as judicially erroneous and the trial court must be directed to order a new diagnostic study and then properly sentence appellant. Respondent, however, contends that the August 2 order is valid and that since appellant is not eligible for commitment to the California Youth Authority (Welf. & Inst.Code, § 1731.5(b)), the trial court need not order a diagnostic study under section 707.2.
We agree with respondent. The report required under section 707.2 is one "concerning his amenability to training and treatment offered by the Youth Authority." This report is useless for that purpose if appellant cannot be referred to the Youth Authority, as is the situation in the case at bench. Section 1731.5 of the Welfare and Institutions Code proscribes commitment to the Youth Authority for those sentenced to life imprisonment. The two sections must be read together and reconciled. Therefore, while such a report might be useful for the treatment of appellant, the stated purpose of section 707.2 compels us to reach the conclusion that the trial court need not remand a minor defendant to the Youth Authority prior to sentencing him to state prison if the convicted minor is not eligible for the training and treatment offered by the Youth Authority. We do not deal with the issue of whether the trial court, prior to sentence, may remand such a convicted ineligible minor for the Youth Authority evaluation and report.
[146 Cal.Rptr. 752]The judgment of August 2, 1977, is affirmed.
FLEMING, Acting P. J., and COMPTON, J., concur.
[*] on December 20, 1978, the cause was retransferred to the Court of Appeal, Second District, Division Two, with directions.
"Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority. No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.