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Court of Appeal, Third District, California.

IN RE: Jack R. HARRIS, on Habeas Corpus.

Cr. 4255.

Decided: June 13, 1967

Robert F. O'Neal, Sacramento, court-appointed counsel, for petitioner. Thomas C. Lynch, Atty.Gen., and Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

Petitioner, presently confined in Folsom Prison under a court judgment of conviction for murder, is serving a life sentence imposed by the Superior Court of San Luis Obispo County on June 24, 1946, for the commission of such crime.

At the preliminary examination held on July 23, 1940, evidence was introduced tending to prove that the petitioner, then 14 years of age, had attacked and killed an 8–year–old girl.   At this time petitioner was a resident of the Rancho Descanso School for boys as an emotionally disturbed person.   He was not represented by counsel at the preliminary examination.

On August 22, 1940, the petitioner, with court-appointed counsel present, appeared before the Superior Court of San Luis Obispo County and entered a plea of guilty of the offense charged in the information (i.e., that he did wilfully, unlawfully, feloniously and with malice aforethought, murder a human being).

Thereafter petitioner was declared to be a sexual psychopath and was committed to the Mendocino State Hospital.   Six years later, in June 1946, the superintendent of the state hospital notified the superior court that petitioner had not recovered from his sexual psychopathy, would not benefit from further hospitalization and was being returned to the jurisdiction of the court.   On June 24, 1946, he appeared with his court-appointed counsel and judgment was entered sentencing the petitioner to state prison for life.

In his petition, petitioner sets forth five reasons stating why he believes his imprisonment to be illegal.   Two of these contentions merit comment.

Petitioner first challenges the adequacy of representation by counsel.   The petitioner's age, his status as an inmate in a school for disturbed children, plus the bizarre nature of his crime, make it fairly obvious that in 1940 there was a necessity for some kind of inquiry into the question of criminal responsibility.   The record, however, shows no reference to psychiatric examination of petitioner until after the plea of guilty occurred.   Thus, so far as the record is concerned, there is a question whether the attorney pursued such an inquiry.   There was certainly no entry of a plea of not guilty by reason of insanity.

However, the Attorney General requested and received permission to lodge certain documents concerning this case with the court.   Included among these documents is the affidavit of Andrew Renetzky, the attorney who represented petitioner at the time of his commitment to the state hospital and to state prison.   In his affidavit Mr. Renetzky states that he questioned the petitioner thoroughly and talked with members of the medical profession for the purpose of defending petitioner on the ground of insanity;  however, he could not procure adequate testimony of this fact.   The statements in the affidavit are corroborated by an August 30, 1940, report of Dr. Thomas Hagerty, who conducted a psychiatric examination of the petitioner.   In his report Dr. Hagerty states that there was no evidence of a definite psychosis, and that petitioner was not insane.   The statements in the affidavit are also corroborated by a July 13, 1940, report of Dr. Leslie B. Blades.   After a psychiatric examination, Dr. Blades concluded that petitioner was not insane.

 Finally, because of the court's concern in this matter, we appointed Dr. James R. Richmond to conduct a psychiatric examination and evaluation of petitioner.   The April 1967 report of Dr. Richmond provides little or not room for the inference that petitioner might have been legally insane in 1940.   He concludes that there is nothing in the record to suggest that petitioner was in such mental condition at that time as to impair his legal responsibility.   Under these circumstances, it does not appear that there was any lack of adequate representation by counsel or that counsel was unaware of a rule of law basic to the case.  (See People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 415 P.2d 35.)

 Petitioner's other contention requiring comment is that in 1940 he was adjudicated “mentally incompetent” and that such adjudication was never set aside.   it is true that a minute order refers to petitioner as a “mentally ill person.”   Our examination of the entire trial court record, however, indicates that the clerk committed a scrivener's error, for petitioner was never regarded or handled as a mental incompetent.   Rather, the record shows that in August of 1940 there was an adjudication finding the petitioner to be a sexual psychopath in accordance with the “Sexual Psychopath Law” as it was known at that time.  (Welf. & Ins.Code, § 5500 et seq.)   Thereafter, petitioner was treated and handled pursuant to that law.   The contention has no merit.

The application of petitioner presents another matter which we deem worthy of consideration.  Section 1192 of the Penal Code, as it read at the time of petitioner's conviction and entry of judgment, provided:

“Upon a plea of guilty * * * of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree.”

Here, the trial court failed to fix the degree of petitioner's crime before imposing sentence.   The People concede that the minutes of the proceedings and the judgment itself fail to reflect a specific determination of the degree of the murder.   The People argue, however, that the court made an inferential finding of first degree murder since it sentenced petitioner for life, for this penalty could be imposed only for first degree murder under section 190 of the Penal Code as it then read.

Be that as it may, we feel that different considerations apply in this case.   We have carefully examined the entire record in this case, including the reports on petitioner's mental and emotional state at the time of the incident.   After a thorough review of this material, we are convinced that at the time of the killing petitioner was unable to, and did not, premeditate his acts, and we so hold.  (See Pen.Code, § 1181;  People v. Ford, 65 A.C. 30, 52 Cal.Rptr. 228, 416 P.2d 132.)

Petitioner's history is taken from the record, which includes the reports of the psychiatrists:  The petitioner was abandoned by his natural parents at an early age.   He was taken in by foster parents, but his home life was not happy.   He felt that his foster mother simply used him to do work about the house.   His foster father drank excessively.   He apparently was never legally adopted.   To show his resentment, he would strike his mother and steal things.   He would also “hide ”from his foster parents for days at a time, and would skip his classes at school.   At the age of six, he suffered a head injury, followed by four or five hours of unconsciousness.   When the foster parents finally lost all control over him, he was placed in the Rancho Descanso School for boys as an emotionally disturbed person.

A psychiatrists' report made prior to the incident noted that petitioner was suffering from “a deep-seated organic nervous instability” complicated by “emotional conflicts” and needed supervision and control that would “protect him from his own destructive impulses.”   Examination by psychiatrists following the homicide revealed that petitioner “became the victim of an environmental structure which inevitably created him as a constitutionally inferior personality,” that he was a “sex psychopath,” and that he was “quite lacking in any understanding of moral values.”

As noted, because of the court's concern in this matter, we appointed James R. Richmond, M.D., to make an independent evaluation of petitioner.   Dr. Richmond's report corroborates the findings set forth above.   In addition, he seriously questions the original conclusion that the murder of the child was primarily the result of sexual passions.   Dr. Richmond also notes that “there was pitifully little effort directed towards trying to understand in any objective fashion why he acted as he did.”

 Under the Wells–Gorshen rule, in cases other than where a felony murder is charged, a defendant cannot be convicted of murder in the first degree if, at the time of the alleged offense, he was operating under a mental disability not amounting to legal insanity that prevented him from acting with malice aforethought or with premeditation and deliberation.  (People v. Ford, supra, 65 A.C. 30, 43, 52 Cal.Rptr. 228, 416 P.2d 132;  see also People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492;  People v. Wells, 33 Cal.2d 330, 202 P.2d 53.)   From an examination of the record, we have been unable to find that defendant could have formed or sustained the premeditation requisite to a conviction of wilful, deliberate, and premeditated murder, which is murder of the first degree.  (Pen.Code, § 189.)

 This court has the power to modify a judgment or direct the entry of the proper judgment when the record itself indicates what the proper result should be.  (See Pen.Code, § 1181;  Traynor, Some Open Questions On The Work of State Appellate Courts, 24 U.Chi.L.Rev. 211, 219–220.)   Accordingly, the judgment imposing sentence for first degree murder is modified by reducing the degree of the crime to murder of the second degree, and the Superior Court of San Luis Obispo County is ordered to change its records.   The Adult Authority is directed to determine petitioner's eligibility for parole in accordance with the holding stated in this opinion.   The order to show cause is discharged and the writ denied.

REGAN, Associate Justice.

PIERCE, P.J., and FRIEDMAN, J., concur.