Petition for Writ of Certiorari — Bovis v. California

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Supreme Court, U.S.

i | FIL#®D

No. 951 98 8 JUN 10 199%

OFFICE OF THE CLERK

n the

SUPREME COURT OF THE UNITED STATES

October Term, 1995

NICK JAMES BOVIS, Petitioner,

Vv.

STATE OF CALIFORNIA, Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeal of the State of California

for the Sixth Appellate District

PETITION FOR A WRIT OF CERTIORARI

Arthur Dudley,

Counsel of Record

Page, Salisbury & Dudley

Attorneys at Law

605 Center Street

Santa Cruz, CA 95060

(408) 429-9966

Counsel for Petitioner

QUESTION PRESENTF’.

Whether petitioner was dwiied his

federal constitutional right whder the

Sixth Amendment to the United States

Constitut.on to have effective assistance

of counsel at trail where the sole and only

defense at trial was a lack of specific

intent due to a mental disease or mental

disorder, and no instruction was given to

the jury, or even requested by petitioner’s

trial counsel, relating the evidence of

mental disease or mental disorder to the

specific intent element of the charged

offense of robbery.

Page

QUESTION PRESENTED ..... i

TABLE OF AUTHORITIES .... iii

OPINION BELOW ..-+-«-ee.e i

JURESDICTION . « «© © ec ec eo « 1

CONSTITUTIONAL PROVISION

INVOLVED “ig “ein aes > Oe eg eae 2

STATEMENT. «© © © © © © @ e@ « 2

A. How the Federal Question

was Presented ... 2

B. The Pertinent Facts . 3

REASONS FOR GRANTING

THE PETITION “ar aN ee ae eee ee Re ae

CONSEWOeLON « © 2 © © © eo ew ow ew OA

APPENDIX A =- OPINION OF COURT

OF APPEAL OF CALIFORNIA,

SIXTH APPELLATE DISTRICT

APPENDIX B =- ORDER OF COURT OF

APPEAL DENYING PETITION

FOR REHEARING

APPENDIX C = ORDER OF SUPREME COURT

OF CALIFORNIA DENYING

PETITION FOR REVIEW

(1986) 477 U.S. 365

(91 L.Ed.2d 305) ....e«« -@

(1984) 466 U.S. 668

[oe G0. 08 OTA es oe 2

STATE CASES CITED

14907). 63 Gal.9@ 272 «6 cs

(1992) 5 Cal.App.4th 917 ..

(1991) 54 Cal.3d 1103 ....

e0 V. no

(1974) 10 Cal.3d 703 ....

(1985) 171 Cal.App.3d 337...

CONSTITUTIONS CITED

U.S. Constitution, Sixth Amendment

FEDERAL STATUTES CITED

$6 8.628. 9 SOI 8A es ee

iii

27,

STATE STATUTES CITES

California Penal Code, § 211 ..... 2

California Penal Code,

“GOs ee SS

OTHER CITATIONS

California Jury Instructions -

Criminal (5th ed. 1996 Supp.) .. 25

a 2 AA ath tne AN

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

NICK JAMES BOVIS, Petitioner,

Vv.

STATE OF CALIFORNIA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

SIXTH APPELLATE DISTRICT

Nick James Bovis respectfully

petitions for a writ of certiorari to

review the judgment of the Court of Appeal

of the State of California for the Sixth

Appellate District in this case.

OPINION BELOW

The opinion of the Court of Appeal of

California, Sixth Appellate District

(Appendix A), is unreported.

JURISDICTION

The judgment of the Court of Appeal of

California, Sixth Appellate District, was

entered on December 13, 1995 (Appendix A).

The Court of Appeal denied a timely

petition for rehearing on January 12, 1996

(Appendix B). On March 13, 1996, the

Supreme Court of California denied a timely

petition for review (Appendix C).

The jurisdictica of this Court is

invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment of the United

States Constitution provides in pertinent

part, "In all criminal prosecutions, the

accused shall enjoy the right .. . to have

the Assistance of Counsel for his defense."

STATEMENT

A. How the Federal Question was

Presented:

In the Superior Court of Santa Clara

County, State of California, petitioner was

convicted by a jury of second degree

robbery with personal use of a firearm

(Cal. Pen. Code, §§ 211; 12022.5, subd.

(a)), and was sentenced to five years in

state prison.

The issue of petitioner receiving

ineffective assistance of counsel in the

trial court was raised for the first time

in the appellant’s opening brief filed by

petitioner in the Court of Appeal. The

Court of Appeal addressed that issue on its

merits in its written opinion (Appendix A)

and resolved the issue adverse to

petitioner. The issue of ineffective

assistance of counsel was then addressed in

a petition for rehearing filed by

petitioner in the Court of Appeal, and ina

petition for review filed by petitioner in

the Supreme Court of California; both of

those petitions were summarily denied

(Appendices B and C).

B. he acts:

The facts underlying petitioner’s

robbery conviction are adequately detailed

in the written opinion of the Court of

Appeal (Appendix A). Very briefly,

petitioner committed his robbery at

approximately 12:50 A.M. by going into a

Taco Bell restaurant in San Jose,

California, with a pistol, and ultimately

pointing the pistol at one of the employees

and then having the employee turn over to

petitioner all of the money in a cash

little over $100.00. Petitioner left the

restaurant and was apprehended about 24

hours later.

Since the claim of ineffective

assistance of counsel centers upon the

failure of petitioner’s trial counsel to

request an appropriate instruction relating

the evidence of petitioner’s mental

disorders to the specific intent element of

the crime of robbery, the facts surrounding

petitioner’s mental disorders as developed

at trial are set forth beiow in some detail

(all references hereinbelow to "R.T." are

to the reporter’s transcript on appeal).

The whole thrust of the defense was

that as a result of two mental disorders

(bi-polar disorder and attention deficit

disorder) petitioner, at the time of the

alleged robbery, lacked the necessary

specific intent involved in that offense.

As a child, petitioner was very

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hyperactive. Petitioner needed a tutor

until the fifth grade and thereafter was in

special education classes until high

school. (R.T. 183-186.) Petitioner

started using marijuana and alcohol when he

Was seven years old. (R.T. 311.)

Petitioner ultimately started using cocaine

and alcohol together in order to make

himself feel normal. (R.T. 312.) In high

school petitioner was very irritable,

nervous and hard to handle. Petitioner

would either argue with his parents or have

no communication with them. (R.T. 186.)

Later, after petitioner graduated from

college and began working in the San

Francisco Bay Area in research and

development for a company called Quake

Defense in 1986, petitioner worked six to

seven days a week, day and night, for a

period of three to four years. (R.T. 186-

187, 310-311.) Eventually, in 1990,

petitioner started smoking crack cocaine

and became addicted to that drug. (R.T.

312.) Petitioner started to believe that

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he had a contagious disease, that bugs came

out of his fingernails and that lice were

in his head. (R.T. 189.) By early 1992,

petitioner was unkept and withdrawn;

petitioner would move from motel to motel.

Also, petitioner lost all of the money he

had saved. (R.T. 188-189.) During that

time petitioner was taken to a hospital,

but only stayed 20 to 30 minutes before

leaving. (R.T. 189-190.)

In February 1992, Father Anthony

Kosturos, a pastor at a Greek Orthodox

Church, met with petitioner on four

occasions for at least two and one half

hours each time. On those occasions

petitioner was very agitated. (R.T. 177.)

Eventually, in March 1992, Father Kosturos

took petitioner to psychiatrist Lawrence

Petrakis at St. Francis Hospital in San

Francisco. (R.T. 178-179, 191, 404-405,

411.) At that time petitioner was

psychotic. Petitioner was paranoid in that

he believed certain people and elements in

society had it out for him. Petitioner was

“very high" believing that he had unusual

abilities and unusual powers and that usual

rules did not apply to him. Additionally,

petitioner’s mood was out of control and he

would fluctuate to moments of being a

"little bit" depressed. (R.T. 411.)

Finally, around the middle of August

1992, petitioner placed himself into a 30

day rehabilitation program in Scotts Valley

in Santa Cruz County called The Camp. A

few days after commencing The Camp progran,

petitioner was visited by his parents.

Petitioner was very irritable and angry.

Petitioner told his parents to go home and

that he did not want to see them or talk to

them. (R.T. 191-192, 312.) Also, early in

petitioner’s stay at The Camp progran,

petitioner deliberately started bumping his

head against a wall. (R.T. 313.)

Dr. Raymond Reynaud, a psychiatrist

working with The Camp program, met with

petitioner. Dr. Reynaud diagnosed that

petitioner had a bi-polar mental disorder

of extreme highs and extreme lows, was a

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poly-drug substance abuser and had an

attention deficit disorder which was

manifested primarily by anxiety and intense

apprehension, expectancy and tenseness. |

(R.T. 215-221.) Dr. Reynaud placed

petitioner on lithium, and by September 10,

1992, petitioner was responding well to the

lithium and started to feel calm. (R.T.

219, 223, 225, 227, 313-314.)

Petitioner completed The Camp program

on September 21, 1992, and commenced to

live at a clean and sober living

environment in a residence operated by

Support Systems Homes at 1204 Castlemont in

San Jose. (R.T. 226, 250-253, 316.) Also,

after leaving The Camp program, petitioner

was going to continue to see Dr. Reynaud.

(R.T. 226, 316.)

Additionally, before petitioner left

The Camp program he met a woman by the name

of Sally Sutter who was a patient at a

program affiliated with The Camp called

Star Lodge. (R.T. 227, 318.) Petitioner

fell in love with Sutter and became

;

obsessed with her. (R.T. 319.) However,

according to Dr. Reynaud, who knew both

petitioner and Sutter, it was not healthy

for Sutter and petitioner to be together.

(R.T. 228.) Later, petitioner transported

Sutter from Star Lodge to a halfway house

in Ben Lomond. Then, in October, November

and December 1992, petitioner saw more of

Sutter. (R.T. 318-319.)

Moreover, petitioner began to feel

that he did not need to see Dr. Reynaud and

that he could regulate his own use of

lithium. (R.T. 316-317.) Then, about one

week before the alleged robbery in this

matter, Sutter left her halfway house in

Ben Lomond and started living in

petitioner’s vehicle. Apparently, Sutter’s

halfway house was doing drug testing on the

residents of the halfway house, and Sutter

was using drugs. Additionally, Sutter at

that time apparently was on probation and

drug diversion. (R.T. 319.)

Petitioner started violating the rules

of his own clean and sober residence by not

attending meetings and staying out with

Sutter. (R.T. 320.) At one point while

Sutter was living in petitioner’s car,

Sutter overdosed on some drugs, became

hysterical and started to tear apart the

inside of the car. (R.T. 320-321.) Then,

on Friday, December 18, 1992, petitioner

stopped taking his lithium all together in

order to care for Sutter. Apparently,

Sutter had gotten high on some

methamphetamine, became "weird" and started

to pull things out of petitioner’s car.

Petitioner decided he needed to stay up to

take care of Sutter and by not taking his

lithium he could stay awake and not fall

asleep. (R.T. 322.)

On Saturday, December 19, 1992,

petitioner had had no sleep and still was

not taking his lithium. Petitioner and

Sutter went to a 49er football game at

Candlestick Park. They only stayed at the

football game for a short time since Sutter

wanted to go to Oakland to get more pills.

(R.T. 322-323.) After arriving in Oakland,

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petitioner remained in his car while Sutter

went somewhere for quite awhile. (R.T.

324.) When Sutter came back petitioner

then drove Sutter to her parents’ house in

the Oakland Hills where Sutter wanted to

pick up more clothes. (R.T. 324.) Sutter

apparently was under the influence of some

drug and while at her parents’ house she

ended up on the ground. Sutter’s father,

who was a judge, told petitioner to get rid

of Sutter. Petitioner picked Sutter up and

carried her back to his car. (R.T. 324,

371.)

Petitioner then spent the night in his

car with Sutter in a park near the

residence of Sutter’s parents. Sutter was

passed out and close to overdosing. (R.T.

324-325.) Petitioner did not want to take

Sutter to any hospital since he knew Sutter

was on probation or diversion and he did

not want the authorities to find out that

Sutter was back in trouble. (R.T. 325.)

During the night petitioner stayed up with

Sutter and looked after her; petitioner did

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not sleep, and he still was not taking his

lithium. (R.T. 325.)

Some time late in the morning of the

next day on Sunday, December 20, 1992,

petitioner and Sutter ended up in Golden

Gate Park in San Francisco. Petitioner

tried to talk to Sutter about getting

treatment. (R.T. 325-326.) Petitioner

then drove back to San Jose with Sutter,

and in the afternoon he returned to his

clean and sober residence at 1204

Castlemont. Petitioner parked his car

around the corner from the residence and

left Sutter in the car. Petitioner went

into the residence and talked to Andy

Lujan, the executive director of Support

Systems Homes. (R.T. 250, 325-326.)

According to Lujan, petitioner was not

regularly attending meetings at the

residence. Petitioner was not caring for

himself. Petitioner was getting farther

away from reality, and petitioner appeared

to be “gravely disabled". Petitioner’s

conversations veered from one topic to

another. Petitioner would be excited and

then quite depressed. Petitioner would

sit, stand up and then walk in place.

Lujan tried to talk to petitioner about

being terminated from the residence;

however, petitioner would talk about some

other unrelated subject. (R.T. 256-257.)

In fact, at times all petitioner would talk

about was being in love with Sutter and

trying to help her. (R.T. 259-260.)

Petitioner then left the residence on

Castlemont and drove himself and Sutter to

his parents’ residence in Burlingame.

Petitioner arrived at his parents’

residence at about 4:00 P.M., on Sunday,

December 20, 1992. The plan was for

petitioner and Sutter to go out to dinner

with petitioner’s parents. Petitioner

still was not taking his lithium. At the

residence of petitioner’s parents, Sutter

was walking around and "fiddling" around.

Petitioner was trying to "babysit" Sutter.

At one point Sutter called her own father

from the residence of petitioner’s parents.

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After that call Sutter started crying and

became hysterical. Sutter was "high" on

some drug. Petitioner himself was nervous,

irritable, and walking around a lot.

Petitioner was trying to calm Sutter down.

Eventually, at about 6:00 P.M., petitioner

took Sutter away from his parents’

residence without going out to dinner.

Before petitioner left his parents’

residence, petitioner’s father gave him

$200.00 to buy some new tires for his car

and then gave him $60.00 to take Sutter out

to dinner. (R.T. 193-195, 326-327.)

Petitioner then drove Sutter back to

the Oakland area. Sutter went into a

friend’s house by herself and stayed there

for about two hours. (R.T. 331.)

Petitioner next drove himself and Sutter

back to the San Jose area. All during this

time petitioner was using a Chevron credit

card to purchase gasoline for his car.

Petitioner then dropped Sutter off at a

Carrow’s restaurant on Hamilton in San

Jose. Petitioner next drove over to his

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residence on Castlemont and attended a

house meeting for about one and a half

hours. All during this meeting petitioner

could only think about Sutter back at the

restaurant. At the conclusion of the

meeting petitioner left his residence and

returned to the restaurant where he had

left Sutter. (R.T. 330-333.)

When petitioner entered the restaurant

Sutter was "high" on some drug. Sutter was

wearing a mini-skirt, had lipstick smeared

on her, was upset at petitioner and had her

"stuff" spread out on a counter in the

restaurant. Men were trying to pick Sutter

up. Petitioner got Sutter out of the

restaurant and into his car before the

police could be called. Once in

petitioner’s car Sutter told petitioner

that she wanted to go San Francisco to be a

stripper or a hooker. (R.T. 332-333.)

Petitioner then started to drive

toward San Francisco on Highway 280. Anger

was building up inside of petitioner, and

he wanted to blow up. Petitioner then lost

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control of himself, skidded across four

lanes of the highway, stopped, jumped out

of his car and broke off a mirror on the

side of the car. At that point petitioner

was yelling, and Sutter was unconscious.

{(R.T. 333.)

Petitioner still was not taking his

lithium. (R.T. 333.) Petitioner then

drove back toward his residence on

Castlemont. As petitioner neared the

residence, he parked his car, got out, went

to the trunk of the car, got out a pistol

that he used for target practice, put on

some tennis shoes and walked up the street

angry, mad and out of control. (R.T. 252-

254, 329-330, 333-334, 382-383, 389, 504-

509.) Petitioner had no intention to do

anything; he was out of control and had no

way of controlling himself. (R.T. 334,

382-383, 389.) Petitioner went into the

Taco Bell, pulled out his gun, took maybe

$100.00 and then ran out of the restaurant.

(R.T. 334.) At the time of the taking of

the money, petitioner was out of control,

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had no idea who he was, felt like he was in

a video, had no purpose, had no control and

just was acting on impulse. (R.T. 358,

372-373, 376-377.)

After petitioner left the restaurant

he attempted to put the pistol into his

pants. However, the pistol discharged

accidentally. Petitioner then got into his

car, dropped the money on the floor of the

car, drove down the street, stopped and hid

the pistol in some bushes. (R.T. 334.) At

that point petitioner felt scared. (R.T.

334.)

Petitioner then drove himself and

Sutter to a motel for which he may have

paid for earlier. (R.T. 334-335.) In any

event, petitioner stayed at the motel for

only a few moments before he drove himself

and Sutter back to the Oakland area. At

that point Sutter was still unconscious.

(R.T. 335.) After arriving in the Oakland

area petitioner and Sutter spent the night

in the car in a "bad" area. Petitioner did

not use or purchase any type of drug.

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(R.T. 312, 335-336.)

When sunlight came Sutter wanted to go

to a place called Solidarity in San Mateo.

Petitioner drove Sutter to that location

and waited for Sutter in the car. (R.T.

336.) As petitioner was waiting for Sutter

to return he remembered that he had a 1:00

P.M. appointment with Dr. Petrakis in San

Francisco. Petitioner then took some of

his lithium. When Sutter returned

petitioner then drove to San Francisco for

his appointment with Dr. Petrakis. (R.T.

336-337.)

Dr. Petrakis saw petitioner for about

half an hour commencing at 1:00 P.M. on

December 21, 1992. At that time petitioner

was very psychotic. (R.T. 412.)

Petitioner was very agitated; petitioner’s

moods were up and down; petitioner did not

make sense; Dr. Petrakis could not follow

what petitioner was saying. (R.T. 413.)

Petitioner was too disorganized to give a

proper history. (R.T. 415.) Dr. Petrakis

felt that petitioner needed to be

hospitalized. However, Dr. Petrakis was

not willing to hospitalize petitioner in

San Francisco since petitioner was living

in San Jose. (R.T. 415.)

When petitioner heard that Dr.

Petrakis thought that petitioner needed to

be hospitalized, petitioner got scared,

left Dr. Petrakis’ office and drove back to

San Jose. Petitioner returned to the

residence at 1204 Castlemont, took a shower

and started to take more of his lithiun.

Petitioner talked to one of the counselors

at the residence, skipped a meeting and

proceeded to leave the residence.

Apparently, as petitioner was leaving the

residence he was told that he had to be

back within 40 minutes or he would be

terminated from the residence. (R.T. 337-

338.) Petitioner then apparently drove

around with Sutter and was trying to figure

out how to get rid of her. Petitioner had

just left from a Chevron gasoline station

when he was stopped and arrested by the

police. (R.T. 338-339.)

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After petitioner’s arrest, petitioner

in January 1993, commenced to see

psychiatrist Robert Landeen and continued

to see Dr. Landeen on a regular basis up to

and including the time of petitioner’s

trial in April 1994. All during this time

petitioner was seeing Dr. Landeen twice a

week. (R.T. 272-273, 275, 317-318.) Dr.

Landeen diagnosed petitioner as having a

bi-polar (i.e., manic-depressive) mental

disorder and an attention deficit disorder.

(R.T. 275-278.) According to Dr. Landeen

few people have both a bi-polar disorder

and an attention deficit disorder.

Additionally, according to Dr. Landeen the

attention deficit disorder exacerbates the

bi-polar disorder. (R.T. 280-281.)

As part of his treatment Dr. Landeen

ultimately got petitioner on lithium to

control the bi-polar disorder and on busbar

to control the attention deficit. disorder.

(R.T. 275, 318.)

Dr. Reynaud was of the opinion that a

person why had an uncontrolled bi-polar

episode would have poor judgment, be out of

control, have impulsive or scattered

behavior and have psychotic reasoning. In

turn, this would affect one’s ability to

form intent. (R.T. 229-231.) Similarly,

Dr. Petrakis believed that such a psychosis

would very seriously impair one’s ability

to have intent. (R.T. 416.)

Furthermore, Dr. Landeen was of the

opinion that the failure of one to take

proper medication for a bi-polar disorder

and an attention deficit disorder would

affect one’s ability to form intent. (R.T.

287-288.)

Lastly, Dr. Harvey Dondershine, a

psychiatrist, explained that when a bi-

polar disorder and an attention deficit

disorder overlap they compound each other,

create a low frustration tolerance and

cause problems with regard to resisting

impulses. As such one has lower ability to

resist bouts of anger and will have sudden

disruption of thinking and behavior leading

one to snap or act out. (R.T. 446-448.)

Additionally, Dr. Dondershine listened to a

tape recording of the statement petitioner

gave to the police after his arrest, and

the doctor pointed out that various

statements and events occurring during that

interview indicated that at that time

petitioner was suffering from a bi-polar

disorder and an attention deficit disorder

that was not being properly medicated.

(R.T. 449-458.) Also, Dr. Dondershine

explained that someone, who felt during an

incident as though he were observing his

own behavior, could have impairmert with

regard to intent. (R.T. 460-461.)

REASONS FOR GRANTING

THE PETITION

It is petitioner’s contention that his

trial counsel was constitutionally

ineffective in failing to request a jury

instruction relating petitioner’s mental

disorders to the specific intent required

for robbery.

This Court in the past has addressed

issues of ineffective assistance of counsel

for allegedly failing to conduct a proper

investigation of a case (Strickland v.

Washington (1984) 466 U.S. 668 [80 L.Ed.2d

674)), and for failing to raise a proper

objection to the inadmissibility of certain

critical evidence (Kimmelman v. Morrison

(1986) 477 U.S. 365 [91 L.Ed.2d 305}).

This case appears to present a new

issue to this Court, but unfortunately a

reoccurring one that is frequentiy seen by

lower appellate courts and trial courts,

where a defendant’s trial counsel fails to

request an appropriate jury instruction

that is critical and relevant to the

defense presented in a case.

In this case it is obvious that the

evidence of petitioner’s mental disorders

were directly related to the one and only

material issue in petitioner’s case (i.e.,

intent) and was introduced to show that

petitioner did not have the necessary

specific intent required in the offense of

rebbery. Petitioner repeatedly testified

that he did not have an intent.

Furthermore, four psychiatrists were called

as defense witnesses to support the

contention that as a result of petitioner’s

mental disorders, petitioner did not have

the necessary specific intent. The only

argument to the jury by petitioner’s trial

counsel was that the evidence produced at

trial concerning petitioner’s mental

disorders showed that petitioner did not

have the necessary specific intent for the

crime of robbery. (R.T. 573, 575, 585-

586.)

However, petitioner’s trial counsel

never requested any type of jury

instruction relating petitioner’s mental

disorders to the specific intent involved

in the offense of robbery; nor was any such

instruction given to the jury. (R.T. 546-

548.) For example, an appropriate

instruction would have read as follows:

"In the crime of robbery of which the

defendant is accused, a necessary element

is the existence in the mind of the

defendant of the specific intent

permanently to deprive the person of the

property. If the evidence shows that the

defendant had a mental disorder, or mental

disorders, at the time of the alleged

crime, you should consider that fact in

determining whether the defendant had such

specific intent. If from all the evidence

you have a reasonable doubt whether the

defendant formed such specific intent, you

must find that he did not have such

specific intent." (See Cal. Jury

Instruction-Criminal (5th ed. 1996 Supp.)

No. 3.32 on p. 60, and No. 4.21 on p. 72.)

Under California law such a "pinpoint"

instruction was appropriate in this case if

requested by trial counsel. (See People v.

Saille (1991) 54 Cal.3d 1103, 1117-1121;

People v. Whitler (1985) 171 Cal.App.3d

337, 343 [concurring opinion of Justice

Sims); see also People v. Morales (1992) 5

Cal.App.4th 917, 927.)

Furthermore, due to the fact that the

evidence of petitioner’s mental disorders

was the foundation for petitioner’s sole

defense in this case, trial counsel could

not have had any viable tactical reason to

refrain from requesting a "pinpoint"

instruction clearly explaining the

relationship between the evidence of

petitioner’s mental disorders to the

specific intent required for robbery.

As this Court explained in Strickland

vy. Washington, supra, 466 U.S. 668, 686 [80

L.Ed.2d 674) "(t)he benchmark for judging

any Claim of ineffectiveness must be

whether counsel’s conduct so undermined the

proper functioning of the adversarial

process that the trial cannot be relied on

as having produced a just result."

Additionally, as this Court explained in

Strickland, the standard for accessing an

attorney’s performance is whether the

attorney rendered “reasonably effective

assistance." (Supra, 466 U.S. 668, 687 [80

L.Ed.2d 674]}.)

As the California Supreme Court has

said, the right to effective assistance of

counsel includes the expectation that

counsel "will make a rational and informed

Gecision on strategy and tactics founded on

adequate investigation and preparation."

(People v. Ledesma (1987) 43 Cal.3d 171,

215.) In particular, "the duty of counsel

to a criminal defendant includes careful

preparation of and request for all

instructions which in [counsel’s] judgment

are necessary to explain all of the legal

theories upon which [the] defense rests."

(People v. Sedeno (1974) 10 Cal.3d 703,

717, fn. 7.) This clearly did not occur in

this case.

The only remaining question is whether

petitioner was prejudiced by trial

counsel’s omission. (See Strickland v.

Washington, supra, 466 U.S. 668, 691-692

[80 L.Ed.2d 674].) In this case, the jury

never received any instruction from the

trial court relating the evidence of

petitioner’s mental disorders to the

specific intent required of robbery.

Additionally, the trial court specifically

told the jury that if there were any

conflict between what counsel argued and

the court’s instructions, the jury was to

be governed by the instructions. (R.T.

549.) The trial court also advised the

jury that all of the applicable law was

provided to it in the court’s instructions.

(R.T. 610.) Under such circumstances,

contrary to the suggestion of the Court of

Appeal in this case, it is unreasonable to

think that the jury, on its own, somehow

understood that the evidence of

petitioner’s mental disorders could create

a reasonable doubt as to the existence of

the necessary specific intent. It should

not be assumed that the jury understood a

legal principle never explained to it in

the court’s instructions. The ultimate

purpose of the right to effective

assistance of counsel as this Court

explained in Strickland is to protect a

defendant’s fundamental right to a trial

that can be relied on as having produced a

just results.

Petitioner presented significant

evidence of the existence of mental

disorders. Petitioner also presented

evidence of a lay witness that in the days

before the robbery petitioner was getting

further away from reality, petitioner was

"gravely disabled" and petitioner was

regressing in his behavior. (R.T. 255-

259.) Additionally, petitioner presented

his own testimony that at the time of the

robbery he was out of control and did not

have an intent. Furthermore, petitioner

presented evidence of a psychiatrist who

saw petitioner about 12 hours after the

robbery at which time the psychiatrist

believed that petitioner was very

psychotic, disorganized and needed to be

hospitalized. (R.T. 412, 415.) On this

record, there is a reasonably probability

that a properly instructed jury could have

concluded that the evidence of petitioner’s

mental disorders created a reasonable doubt

as to whether petitioner entertained the

necessary specific intent. (See Strickland

vy. Washington, supra, 466 U.S. 668, 694-695

(80 L.Ed.2d 674}.) Consequently, the

omission by trial counsel concerning the

instruction in question renders the result

of petitioner’s trial unreliable. Thus,

petitioner’s conviction must be reversed

because of trial counsel’s ineffectiveness.

CONCLUSION

The petition for writ certiorari

should be granted.

Respectfully submitted,

ARTHUR DUDLEY,

Counsel of Record

Page, Salisbury & Dudley

605 Center Street

Santa Cruz, CA 95060

(408) 429-9966

Counsel for Petitioner

NOT TO BE PUBLISHED

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FILED

Dec 13 1995

Court of Appeal

Sixth App. Dist.

THE PEOPLE,

Plaintiff and Respondent, HO12794

(Santa Clara

Vv. County

Super.ct.

No. 165146

NICK JAMES BOVIS,

Defendant and Appellant.

Defendant Nick James Bovis was

convicted by a jury of second degree

robbery with personal use of a firearm

(Pen. Code, Sec. 211; 12022.5, subd. (a)),

and was sentenced to five years in state

prison. From that conviction, defendant

appeals, contending (1) the trial court

prejudicially erred in instructing the jury

that adverse inferences could be drawn from

defendant’s failure to

(All footnotes to this opinion appear at

the end of the opinion.

explain or deny evidence; (2) his counsel

was ineffective for failing to request a

jury

instruction relating defendant’s mental

disorders to the specific intent required

for robbery; (3) the prosecutor committed

misconduct during closing argument; and (4)

the trial court erred in failing to

consider and rule upon his cruel and

unusual punishment argument. We shall

affirm the judgment.

FACTS

Shortly before 1 a.m. on December 21,

i992, defendant entereda Taco Bell

restaurant located at 1298 South Winchester

in San Jose. He looked around, then walked

up to the counter where the manager, Ayman

Salaymeh, was standing. The only other

person in the restaurant was an employee

named Luis. Defendant puiled out a

revolver, pointed it at Salaymeh, and said,

"Give me the money." Holding the gun to

Salaymeh’s head, defendant walked around to

the back side of the counter.

Salaymeh explained that he needed a

key to open the cash register. As Luis,

who was about five feet away, reached for

the key, defendant began shouting, "Give me

the money, now." He was shaking a little

as he moved the gun back and forth between

Salaymeh and Luis.

Salaymeh opened the cash register and

gave defendant the money inside. It was

only a little over $100, so defendant

ordered Salaymeh to open another cash

contained no money. Defendant did not say

anything, but he looked disappointed. At

that point he ran out of the restaurant.

Three or four seconds after he left,

Salaymeh heard a gunshot. He immediately

notified authorities.

At 2:45 a.m. the following day, Deputy

Sheriff Timothy Shannon saw a car matching

the description of the get-away car (a

white, older, 4-door Mercedes) pulling out

of a Taco Bell parking lot at Camden and

Olympia Avenues. The male driver,

defendant, matched the description of the

robber. There was also a female passenger.

Shannon followed the car for about half a

mile, and then pulled it over because one

of the taillights was burned out. In the

meantime, he had called the San Jose Police

Department, which was investigating the

robbery, to advise that he had found

someone matching the robber’s description.

Shortly thereafter, Sergeant Spence

arrived. He had interviewed Salaymeh the

night before, and he agreed that both

defendant and the car matched Salaymeh’s

description. Spence pulled out his gun and

ordered defendant and his passenger to get

out of the car. The passenger, Sally

Sutter, was hysterical and was clearly

under the influence of drugs. Defendant,

on the other hand, was calm. Spence

handcuffed both of them and asked for

permission to search the car, which was

granted. There were a lot of clothes,

especially women’s clothes, in the car,

suggesting someone was living in it. There

was also a gun case in the trunk containing

12 rounds of ammunition and a pair of ear

plugs. However, no gun was found. Police

also retrieved various gas station receipts

and a Motel 6 receipt. In the meantime,

Salaymeh arrived at the scene and

identified defendant "a hundred percent."

When police pulled a certain shirt out

of the car, defendant said the "jig" was

up; he said he "did it," that Sally Sutter

was not involved, and that he would show

police where he had hidden the gun. He was

then arrested and transported to the police

station.

At the station, defendant was

interviewed. A tape recording of the

interview was later admitted into evidence.

On the tape, defendant said he intended to

buy drugs with the robbery money, but that

"a hundred dollars was not enough... to

get started partying." He said he had

committed the robbery out of anger and

acknowledged that he fact he had not taken

lithium was "no excuse." He said he had

made sure not to touch anything when he was

in the Taco Bell so as not to leave

fingerprints, and that he had used the

money from the robbery to buy gasoline, a

motel room, cigarettes, soda pop, and junk

food. The gun went off accidentally as he

was leaving the restaurant, and he hid it

in some bushes not far away. He was calm

and coherent and did not seem mentally

disordered, suicidal, or in need of

hospitalization. Also, his blood sample

did not show the presence of cocaine,

methamphetamine, PCP or opiates.

After the interview, defendant

assisted police in locating the gun where

he had placed it in the bushes about a mile

from the Taco Bell. The gun had one live

bullet and one expended cartridge in it.

Defendant remained cooperative throughout

the search.

Defense Case

A required element of the crime of

robbery is specific intent. Defendant’s

sole defense at trial was that he lacked

the requisite specific intent to commit the

crime because, at the time of the offense,

he was suffering from attention deficit

disorder and bipolar disorder. Defendant,

his father, his family priest, and three

psychiatrist all testified in support of

this theory.

Defendant was very hyperactive as a

child. He had difficulty concentrating

and, as a result, did not do well in

school. He needed tutoring until fifth

grade and was subsequently placed in

special education classes. When he was

seven years old, defendant started using

marijuana and alcohol. He was suspended

from school on various occasions for drug

possession. As he got older, defendant

switched to cocaine and alcohol, which he

took together to make him feel normal.

He attended San Mateo Junior College

and then Cal Poly San Luis Obispo. After

graduating from college, defendant went to

work in 1986 for a company called "Quake

Defense." He worked six or seven days a

week for three or four years, never taking

any time off. In 1990, however, defendant

started using crack cocaine. He became

addicted to it. As a result, he became

very irritable and began to imagine that

bugs were coming out of his fingernails and

that lice were in his head.

By early 1992, defendant’s appearance

began to change. He looked like a street

person; he was dirty and his hair was

unkempt. He began withdrawing large sums

of money out of his bank accounts and would

move from one motel to another. Soon, all

the money he had saved was lost. At one

point, defendant was taken to a hospital,

but he stayed for only 20 or 30 minutes.

In February 1992, defendant saw his

family’s Greek Orthodox priest, Father

Anthony Kosturos. After four sessions with

defendant, Father Kosturos decided to take

him to Dr. Lawrence Petrakis, a

psychiatrist at St. Francis Hospital in San

Francisco.

Dr. Petrakis believed defendant was

psychotic. He was "very high" at the time

of the appointment, and was convinced he

had extraordinary powers and that usual

rules did not apply to him. He was also

quite paranoid. Defendant’s mood

fluctuated from "very high" to a "little

bit" depressed. Dr. Petrakis acknowledged

that he could not rule out the possibility

that defendant’s symptoms were the result

of a history of drug use.

In August 1992, defendant placed

himself in a 30-day rehabilitation program

called the Camp in Scotts Valley. There he

saw Dr. Raymond Reynaud. Dr. Reynaud

diagnosed defendant as having bipolar

disorder of extreme highs and lows and

attention deficit disorder. He also noted

that defendant was a poly-drug substance

abuser. Dr. Reynaud placed defendant on

lithium. By September 1992, defendant was

starting to feel calm, and he appeared to

be doing very well. At about this time,

defendant met Sally Sutter, a patient at a

facility affiliated with The Camp. Dr.

Reynaud did not feel defendant’s

relationship with Sutter was healthy.

On September 21, 1992, defendant

finished The Camp program and went to live

at a “clean and sober" residence operated

by Support System Homes in San Jose. He

continued seeing Dr. Reynaud for a while,

then felt it unnecessary because he could

regulate his own use of lithiun.

In December 1992, about a week before

the robbery, Sally Sutter moved out of her

halfway house and into defendant’s vehicle.

The halfway house was conducting drug

testing, and Sutter, who was using drugs,

was afraid she would get caught. She was

at that time on probation and on drug

diversion. Meanwhile, defendant stopped

attending meetings at his clean and sober

residence so he could spend more time with

Sutter. Around December 18, Sutter

overdosed on methamphetamines. Defendant

felt he had to take care of her, so he did

not take his lithium that day. He needed

to stay awake to take care of her, and the

lithium might make him fall asleep.

The next day, defendant and Sutter

went to a 49ers football game. From there,

they went to Oakland to get some pills.

After that, they went to Sutter’s parents’

house. Sutter’s father, a superior court

judge, told defendant he should get rid of

her. At that point, defendant took Sutter

back to his car. She passed out shortly

thereafter. Defendant decided not to take

his lithium again that day so he could stay

up all night taking care of Sutter.

The next day, December 20, defendant

returned to his clean and sober residence,

leaving Sutter in the car. There he talked

to Andy Lujan, executive director of the

residence. Lujan told defendant he might

be terminated from the residence for

failing to regularly attend meetings and to

care for himself. Defendant kept changing

the subject and seemed to be getting

farther and farther away from reality.

Later that day, defendant and Sutter

drove to defendant’s parents’ house in

OP ADP EGE Ff A OES

0 Oe Fagg WO aS OS

mn Sencar ae

Burlingame. He was hoping his parents

would take them out to dinner. However,

Sutter was high on some drug. After she

talked to her own father on the telephone,

she became hysterical and was crying. As a

result, defendant and Sutter left about 6

p.m, without having gone out to dinner.

His father gave him $60 for dinner,

however, as well as another $200 to get

tires.

From there, defendant drove to

Oakland, where he waited two hours for

Sutter while she met with a friend, and

then back to San Jose. He dropped Sutter

off at a restaurant and went to his clean

and sober residence to attend a meeting.

During the meeting, all defendant could

think of was Sutter and how much he loved

her. As soon as the meeting was over, he

went to the restaurant to pick her up.

There he found her high on some drug with

her "stuff" spresd out on the counter in

front of her. Men were trying to pick her

up. Defendant took her out to his car

~S ATO IF Pe “ ws

before police could be called. In the car

Sutter told defendant she wanted to go to

San Francisco to be a stripper or a hooker.

He started driving to San Francisco but was

so angry- he lost control and skidded across

four lanes of highway. He stopped, jumped

out of his car and broke off the mirror on

the side of the car. Sutter was

unconscious at the time.

Defendant then drove back toward his

clean and sober residence. Before he

arrived there, however, he stopped, got out

of the car, went to the trunk and pulled

out the gun. He had no intention to do

anything. He was just mad and out of

control. He put on some tennis shoes and

walked down the street, went into a Taco

Bell, and there pulled out his gun and took

about a hundred dollars. He had not taken

his lithium for over two days and he felt

totally out of control, as if he were ina

video. As he was leaving the restaurant,

the gun accidentally went off. He got into

his car, dropped the money on the floor,

oy yo et ee! At ele ies, 8 Oe apis e

and stopped and hid the gun in some bushes.

After he left the restaurant, he went

with Sutter to a motel. However, they

stayed only a few minutes, leaving shortly

thereafter to drive to Oakland. Sutter was

still unconscious. The two of them spent

the night in the car in a "bad" area of

Oakland.

In the morning, Sutter asked to be

taken to a place called Solidarity in San

Mateo. He took her there and while he was

waiting remembered that he had a 1 p.n.

appointment with Dr. Petrakis in San

Francisco. In anticipation of the

appointment, defendant took his lithiun.

At the appointment, defendant appeared

to be very agitated, with extreme mood

swings, and not making any sense. Dr.

Petrakis felt defendant was psychotic and

needed hospitalization. However, when

defendant heard the psychiatrist talk about

hospitalization, he left the appointment

and drove back to San Jose. He went to his

clean and sober residence, showered, and

‘

;

ebienaly oa acl acute. sia

took more lithium. There he talked to a

counselor who told him that if he missed

any more meetings, he w:.:ld have tc leave

the residence. Defendant then drove around

with Sutter. Just after he left a Chevron

station, he was stopped and arrested.

In the next year and four months until

his trial, ]/ defendant saw psychiatrist

Dr. Robert Landeen two times every week.

Landeen was of the opinion that defendant

had bipolar disorder and attention deficit

disorder. He based this diagnosis in part

on what defendant told him Dr. Reynaud haa

found. Dr. Landeen had never before come

across any one who suffered from both

attention deficit disorder and bipolar

disorder. Defendant was the first. Dr.

La:.deen prescribed lithium for the bipolar

dis‘%rder and busbar for the attention

de*icit disorder. Dr. Landeen noted it is

difficult to diagnose bipolar disorder in a

person who is a chronic drug user and who

reports "almost exclusively manic behavior"

and almost no depressive behavior. The

doctor must rely on the patient’« past

history. Short-term elation is mire

consistent with drug use, while «lation

lasting man: days is more consistent with

bipolar disorder.

Dr. Landeen believed that if an

individual wh» had bipolar disorder and

attention deficit disorder failed to take

his or her medicine, it would affect the

asl:

individual’s ability to form an intent.

Drs. Petrakis and Reynaud expressed similar

views. Psychiatrist Dr. Harvey

pk ART UR eAelonacna nailed Raia na

j Dondershine is an expert in diagnosis and

treatment of bipolar and attention deficit

disorders. Although he did not treat

| defendant, h2 was able to form an opinion

based on defendant’s medical records and

his taped interview with police. He felt

that defendant’s statements to police and

Ed BaD re eA aN

his actions during the interview indicated

he was suffering from both bipolar disorder

8 kee aes, eee

and attention deficit disorder. When the

two disorders are present together, Dr.

Dondershine explained, they compound each

ee. eS ee s

pelts este pile ths

other, creating a low frustration tolerance

level. He opined that a person who felt he

was observing his own behavior from the

outside could be impaired with regard to

intent. Dr. Dondershine admitted that he

was deferring in part to Dr. Reynaud’s

diagnosis of bipolar disorder, and that

there were other potential causes, for

example "a medication, street drug abuse,

brain tumor, hyperthyroidism, [or] some

other disease that could produce the same

behavior."

Rebuttal

Sergeant Spence, who arrested

defendant, and Officer Wilson, who

conducted the taped interview with hin,

testified that they did not see any signs

of mental impairment during defendant’s

interview or booking. He was calm and his

mental condition seemed normal.

Dr. Lee Coleman testified as a expert

psychiatrist in the diagnosis of bipolar

and attention deficit disorders. After

studying defendant’s medical reports and

the taped interview, Dr. Coleman found

nothing that would indicate a mental

disorder, "no evidence of any loss of touch

with reality. That is, he knows what’s

going on around him. He’s not having any

what we call delusions or evidence that he

is not aware of the surroundings, or that

he’s irrational in any way." Further,

{

defendant’s speech pattern was "not typical

of manic speech."

Selig _cthtadien ar Ere Ride

Dr. Coleman opined that there was

j nothing about mania that would prevent a

person from forming intent. He said he

disagreed with Dr. Landeen’s diagnosis of

4 attention deficit disorder: "It’s

preposterous. It’s not a diagnosis you

use in adults." He had never seen

attention deficit order in the same person

who had bipolar disorder. He stated that

even if an individual suffered from both

disorders, however, it would only affect

mental condition in the broadest sense.

Having the disorders was "irrelevant" to

the ability to form an intent, just like

having cancer or athlete’s foot would be

irrelevant. Dr. Coleman reiterated that he

found no evidence of psychosis, delusions

or compulsions on the tape.

DISCUSSION

A. CALJIC 2.62

Defendant contends the trial court

erred in instructing the jury pursuant to

CALJIC No. 2.62 that it could draw adverse

inferences against him from his failure to

explain or deny incriminatory evidence. 2/

He contends that he adequately explained

all evidence that was within the scope of

his knowledge. Under those circumstances,

defendant argues, it was error to give the

instruction. (People v. Saddler (1979) 24

Cal.3d 671, 682-683.)

It is for the trial court to determine

in the first instance whether there is

evidence warranting the giving of CALJIC

No. 2.62 (People vy. Saddler, supra, 24

Cal.3d at pp. 681-682.) Here, the trial

court explained its reasons for giving the

instruction, as follows: "A lot of stuff

Te a a ca

deals with his defense, but there’s some

other things that do not. Like page 11, he

was asked how he handled the money in a

certain way. [Par.] ‘Not know why’ I did

it. [Par.] In fact, he uses the words ‘to

touch it like this so I won’t get any

fingerprints like this.’ [Par.] My notes

indicate that in reference to that, why he

touched it in a certain way, he indicated:

I did not know why I did it. Then I went

out the door intending not to touch

anything. {[Par.] Then the answer was: Not

know why. ([Par.] So I think that

throughout here there are situations, not

know why I said it, not know why I did it,

can’t explain it -- this is page 20, line 4

through 26 -- the question was did you buy

any dope. Answer: That’s what I was going

to do and I -- she talked me out of it.

And then on examination the question:

Can’t explain it. Not know what I meant.

[Par.] So I believe that this instruction

then is appropriate under all of the

circumstances here. The jury can determine

Oe cain, nme NO wtpnercinsenlhane

dias a tia 2.

Pe ee

whether or not that applies to a certain

answer that the defendant gave. [Par.] So

then I will give CALJIC 2.62."

Defendant contends the court erred in

giving CALJIC No. 2.62 because he did not

fail to explain all facts within his

particular knowledge: "With regard to how

defendant touched or did not touch things

inside the Taco Bell, defendant explained

that was [sic] ‘out of control’ and in

essence did not remember what he was doing.

With regard to the contradiction as to the

purpose of the stolen money, defendant

explained that during the police interview,

among other things, his mind was not

altogether, he was totally confused and he

did not know what he was talking about.

Accordingly, since defendant explained all

facts within his particular knowledge, it

was error for the trial court to give

CALJIC 2.62."

If a criminal defendant "fully

accounts for his [behavior], the mere fact

that defendant’s story is contradicted by

- Pee de ne

other prosecution evidence does not pave

the way for giving the instruction, because

contradiction is not by itself a failure to

explain or deny." (People v. Mask (1986)

188 Cal.App.3d 450, 455; see also People v.

Saddler, supra, 24 Cal.3d 671, 681-683.)

However, "‘[{ijf the defendant tenders an

explanation which, while superficially

accounting for his activities, nevertheless

seems bizarre or implausible, the inquiry

whether he reasonably should have known

about circumstances claimed to be outside

his knowledge is a credibility question for

resolution by the jury [citations).’

[Citation.]" (People vy. Belmontes (1988)

45 Cal.3d 744, 784; contra, People v.

Kondor (1988) 200 Cal.App.3d 52, 57.)

Here, defendant’s testimony he was so

"out of control" that he did not know what

he was doing is not merely a contradiction;

it is arguably bizarre and implausible in

the context of the other prosecution

evidence that was presented. At the time

of his arrest, at booking, during the

BB RB AMER AL

police interview and during the subsequent

search for the gun, defendant was caln,

articulate, and cooperative. He confessed

to very deliberate behavior, totally

inconsistent with one "out of control,"

such as being careful not to leave

fingerprints at the scene of the robbery.

He also explained, without hesitation, what

he intended to do with the money from the

robbery (i.e., buy drugs). Furthermore,

the interview was taken just 26 hours after

the robbery whereas defendant’s trial

testimony was given some 16 months later.

Defendant’s in-court testimony that he was

out of control and did not know what he was

doing when he was arrested and interviewed

did not explain why he seemed so in control

and so sure of what he was doing and why he

was doing it at the time of the interview.

Under these circumstances, "‘the inquiry

whether he reasonably should have known

about circumstances claimed to be outside

his knowledge is a credibility question for

resolution by the jury... .’

[Citation.]" (People v. Belmontes, supra,

45 Cal.3d at p. 784.)

In any event, even if we were to

accept defendant’s argument that there was

no evidence he failed to explain or deny,

there is still no reasonable probability of

a different outcome. As the court noted in

People v. Saddler, "[Tjhe jurors were

instructed in accord with CALJIC No. 17.31

that they were to ‘disregard any

instruction which applies to a state of

facts which you determine does not exist.’

While such an instruction does not render

an otherwise improper instruction proper,

it may be considered in assessing the

prejudicial effect of an improper

instruction." (24 Cal.3d at p. 684.) In

the instant case, if the jury decided

defendant’s explanation was not

implausible, or did not constitute a

failure to explain or deny, it simply would

have disregarded the instruction. (Accord,

People v. Saddler, supra, 24 Cal.3d at pp.

682-683; People v. Kondor, supra, 200

Cal.App.3d at pp. 57-58; People v. Peters

(1982) 128 Cal.App.3d 75, 87.)

B. Ineffective Assistance of Counsel

Defendant contends his trial counsel

was constitutionally ineffective in failing

to request a "pinpoint" jury instruction

relating defendant’s mental disorders to

the specific intent required for robbery.

Defendant concedes that the defense of

diminished capacity was effectively

eliminated by the Legislature in 1981 when

it enacted Penal Code section 28. 3/ That

section provides: "As a matter of public

policy there shall be no defense of

diminished capacity, diminished

responsibility, or irresistible impulse in

a criminal action or juvenile adjudication

hearing." (§ 28, subd. (b).) Section 28

states that evidence of mental disease,

defect or disorder "shall not be admitted

to show or negate the capacity to form any

mental state, including, but not limited

to, purpose, intent, knowledge,

premeditation, deliberation, or malice

aforethought ... Such evidence is

admissible, however, on whether the

defendant actually formed the necessary

mental state when a specific intent crime

is charged. (§ 28, subd. (a).)

"A provision abolishing the defense of

diminished capacity was also included in

the initiative measure adopted in June 1982

and known as Proposition 8. Section 25 was

added to the Penal Code as part of

Proposition 8. Subdivision (a) of section

25 provides: ‘The defense of diminished

capacity is hereby abolished. In a

criminal action, as well as any juvenile

court proceeding, evidence concerning an

accused person’s intoxication, trauma,

mental illness, disease, or defect shall

not be admissible to show or negate

capacity to form the particular purpose,

intent, motive, malice aforethought,

knowledge, or other mental state required

for the commission of the crime charged. ’

(Par.] Although there was initially some

confusion about the interaction between

Ssuree oss

SPADE CERNE EME pt ie TFS

tet abe ase

section 25, subdivision (a) and section 28

{[citation], courts and commentators now

appear to agree that the two sections are

complementary and that both statutes remain

operative. [Citations.]" (People v. Saille

(1991) 54 Cal.3d 1103, 1112.)

Thus, while the existence of a mental

disorder can no longer be proffered as a

defense to a crime, it may be proffered to

show that the defendant did not have the

necessary mental state to commit a specific

intent crime. Defendant contends on appeal

that since his entire defense was based on

his lack of the requisite specific intent

due to his mental disorders, that defense

counsel’s failure to request a "pinpoint"

instruction on this point constituted

ineffective assistance of counsel. 4/

To establish a claim of ineffective

assistance of counsel, a criminal

"defendant must show that (1) counsel’s

representation was deficient, i.e., it fell

below an objective standard of

reasonableness under prevailing

professional norms; and (2) counsel’s

deficient representation subjected the

defense to prejudice, i.e., there [was] a

reasonable probability that but for

counsel’s failings the result would have

been more favorable. ([Citations.]"

(People v. Babbit (1988) 45 Cal.3d 660,

707.)

“*‘When a defendant makes an

ineffectiveness claim on appeal, the

appellate court must look to see if the

record contains any explanation for the

challenged aspects of representation. If

the record sheds no light on why counsel

acted or failed to act in the manner

challenged, “unless counsel was asked for

an explanation and failed to provide one,

or unless there simply could be no

satisfactory explanation" [citation], the

contention must be rejected.’ [Citaticn. ]

A reviewing court will not second-guess

trial counsel’s reasonable tactical

decisions. ([Citation.]" (People v. Kelly

(1992) 1 Cal.4th 495, 520.)

The record in this case strongly

suggests a reasonable explanation for

counsel’s failure to request a pinpoint

instruction. Most of the expert

psychiatric testimony focused on whether

individuals suffering from both attention

deficit disorder and bipolar disorder

could, in the abstract, form specific

intent to commit a crime such as robbery.

In fact, only defendant’s testimony went to

whether he actually formed the requisite

intent. However, as noted above, the

defense of diminished capacity is abolished

in the State of California. An instruction

drawing the jury’s attention to the

distinction between the Capacity to form a

specific intent and actually forming the

requisite intent may have limited the

jury’s consideration of the psychiatric

evidence.

In any event, even if this court

believed that counsel should have requested

a pinpoint instruction, it is not

reasonably probable that a more favorable

determination would have resulted absent

counsel’s alleged error. (People v.

Wharton (1991) 53 cal.3d 522, 575-576.)

The defense case consisted entirely of

evidence introduced to show that defendant

lacked specific intent at the time of the

robbery. Toward this end, defendant

produced voluminous evidence that he was

disoriented due to the combined effect of

his two-mental disorders. There could have

been no possible reason for the jury to

have.heard all this evidence other than as

it related to whether defendant had the

requisite specific intent. He was

positively identified by the victim; he

confessed; he took police to the place

where he had hidden the gun; he admitted

using the gun and taking the money. In

short, all the elements of the crime --

except intent -- were virtually admitted.

As defense counsel told the jury in closing

argument, "The issue is basically is there

a specific intent to deprive Taco Bell.

Did Nick Bovis on the time in question have

a specific intent to permanently deprive

Taco Bell of that hundred dollars?"

Defense counsel urged the jury to find

defendant guilty of a lesser included

offense, assault with a deadly weapon,

which did not require specific intent.

Under these circumstances, there can be no

doubt that the jury focused on the precise

issue defendant contends should have been

the subject of a pinpoint instruction.

Accordingly, there can be no prejudice.

C. Prosecutorial Misconduct

In closing argument, the prosecutor

was discussing the fact that even a person

suffering from a manic episode could form

an intent. He continued: "[pDr. Petrakis]

said he next saw the defendant the day of

the incident, and that the defendant was

able to form intent to go to the meeting on

time; to get to his office where he had

been only once before to get there on time;

to get to the right office, the right

building; through all the streets. He was

able to form intent when he was psychotic.

That is consistent with Dr. Coleman who

said even in very, very advanced stages of

mania or manic depress[ion], a person can

still form intent. [Par.] This is

important because what the law requires

only is that the person form the requisite

intent at the time. And if there are

explanations for that intent, that’s a

matter beyond the scope of what you are

here to decide. That might be a mitigating

factor the Judge would use in terms of his

sentence. If he believes that, the Judge

could send him to a hospital to get

treatment rather than --" At that point,

the following exchange took place:

"[DEFENSE COUNSEL]: I am going to --

(Par.] THE COURT: Sustained. Punishment

is not a factor. The jury must not

consider it. You must not refer to it.

(Par.] The jury will disregard the comment.

(Par.] [PROSECUTOR]: Punishment is not a

factor that you are to consider in this

case. That is for the Judge to decide; and

the Judge will decide it based on the

evidence. You will have to decide whether

when he took the money, he intended to

deprive Taco Bell of the money. That’s it.

When he took the money, did he intend to

take the money permanently by depriving."

Defendant contends the prosecutor

committed prejudicial misconduct by

mentioning to the jury defendant’s possible

punishment and then erroneously misstating

what that punishment might be. He points

out that case law establishes that a

prosecutor may not argue possible

punishment to the jury, including the fact

that a defendant could get treatment if

convicted, and that statutory law requires

a mandatory prison sentence for robbery

with the use of a firearn. (Citing People

v. Criscione (1981) 125 Cal.App.3d 275,

292; People v. Mendoza (1974) 37 Cal.App.3d

717, 7273 § 1203.06, subd. (a) (1) (B).)

Thus, he says, "[t)he only remaining issue

is whether the prosecutorial misconduct in

issue was prejudicial."

With respect to this "only remaining

issue," we are persuaded that any

prosecutorial misconduct was not

prejudicial. In this case, the trial court

immediately intervened, even before defense

counsel could say "objection." The court

told the jury it could not consider

punishment, it could not refer to it, and

it must disregard the prosecutor’s

statement. Later, in instructing the jury,

the court explained that "[s]tatements made

by the attorneys during the trial are not

evidence," and it admonished, "You must

accept and follow the law as I state it to

you, whether or not you agree with the law.

If anything concerning the law said by the

attorneys in their argument or at any other

time during the trial conflicts with my

instructions on the law, you must follow my

instructions."

In People v. Criscione, supra, 125

Cal.App.3d 275, upon which defendant

relies, the court held that the prosecutor

committed misconduct in his cross-

examination of a defense psychiatrist.

— a

Prosecutorial misconduct occurred (1) when

the prosecutor asked about a certain

scientific study, which was not in evidence

and upon which the psychiatrist had not

relied on direct examination, that the

prosecutor suggested showed that half of

all mental illness is feigned; (2) when the

prosecutor suggested to the jury that

defendant’s act of violence was merely the

acting out of a common southern Italian

masculine role which was the norm in the

Italian-American subculture, rather that

the result of mental illness; and (3) when

the prosecutor implied by a series of

questions directed to a defense

psychiatrist that if released defendant was

likely to kill again. Most of the

colloquies between the prosecutor and the

witness were set forth verbatim in the

opinion, which consisted of numerous pages.

Throughout most of the dialogue, the

defense attorney remained silent,

interposing no objections. In the few

situations in which objections were made,

ee a a

the court simply sustained them. It never

issued an admonishment to the jury. The

appellate court commented that "’"(fjewer

judgments would have to be reversed if the

trial courts were more firm in controlling

the comparatively few prosecutors who need

restraint."’" (Id. at p. 293.)

In the instant case, in contrast, the

prosecutor was cut off in the middle of his

sentence. The court replied "[(s)ustained"

before defense counsel could even get out

the word "objection." The court

immediately admonished the jury to

disregard the comment. It reminded them

that punishment was not a factor they

should consider or refer to. Under these

circumstances, there can be no prejudice

from the prosecutor’s comment in Closing

argument.

D. Cruel _ and Unusual Punishment

Defendant contends (1) the imposition

of a prison sentence 5/ was cruel or

unusual punishment under the facts of this

case and (2) the trial court erred in

concluding it had no discretion but to

impose the prison term. 6/

"It is well settled a statutory

punishment may violate the constitutional

prohibition against cruel and unusual

punishment not only if it is inflicted by a

cruel or unusual method but also if it is

grossly disproportionate to the offense for

which it is imposed. [Citation.] In the

case of In re Lynch (1972) 8 cal.3d 410,

the Supreme Court held a punishment may

violate the California Constitutional

prohibition ‘if, although not cruel or

unusual in its method, it is so

disproportionate to the crime for which it

is inflicted that it shocks the conscience

and offends fundamental notions of human

dignity.’ (Id. at p. 424.)" (People v.

Thompson (1994) 24 Cal.App.4th 299, 304.)"

In People v. Dillon (1983) 34 Cal.3ad

441, the Supreme Court expanded on its

analysis of crimes and proportional

punishments. The court explained that the

trial court must consider the specific

facts of the crime in question, as compared

with only considering the crime in the

abstract. (Id. at p. 479.) In addition,

the court must consider the nature of the

offender and ask whether the punishment is

grossly disproportionate to the defendant’s

culpability, taking into account factors

such as age, prior criminality, personal

characteristics, and state of mind.

(Ibid - )

Defendant, understandably, does not

emphasize the "specific facts of the crime"

in question. He did, after all, enter the

Taco Bell in the middle of the night, take

out a loaded gun, hold it to the head of

the restaurant manager, and demand the

contents of the cash register. When that

cash register did not yield enough money,

he demanded that a second cash register be

opensd. At the time, he pointed the gun

back and forth between the manager and

employee Luis. While he was in the

restaurant, he was careful not to leave any

fingerprints which might incriminate hin.

His loaded gun went off as he exited the

restaurant.

Rather, defendant emphasizes the

“nature of the offender," reiterating in

four pages the thrust of his defense case:

he was hyperactive and was suffering at the

time of the robbery from the effects of

bipolar disorder and attention deficit

disorder. Furthermore, in the two days

before the robbery, he had not taken his

lithium and was under great stress on

account of his girlfriend. However, in

spite of the psychiatric evidence, the jury

concluded that defendant was able to, and

did in fact, form a specific intent to

commit the robbery. Thus, the issue of

defendant’s personal responsibility for the

crime has already been litigated and

decided adversely to him. 7/ Accordingly,

under the facts of this case, the denial of

probation did not constitute cruel or

unusual punishment, whether or not the

trial court believed it did not have

discretion to rule on thie issue.

DISPOSITION

The judgment is affirmed.

Cottle, P.J.

WE CONCUR:

Bamattre-Manoukian, J.

Wunderlich, J.

FOOTNOTES TO OPINION

i/ Defendant has been out on bail at all

times, except for three days, since his

arrest, including during the pendency of

this appeal.

2/ CALJIC No. 2.62 provides: "In this

case defendant has testified to certain

matters. [Par.] If you find that defendant

failed to explain or deny any evidence

against him introduced by the prosecution

which he can reasonably be expected to deny

or explain because of facts within his

knowledge, you may take that failure into

consideration as tending to indicate the

truth of such evidence and as indicating

that among the inferences that may

reasonably be drawn therefrom those

unfavorable to the defendant are the more

probable. [Par.] The failure of a

defendant to deny or explain evidence

against him does not, by itself, warrant an

inference of guilt, nor does it relieve the

prosecution of its burden of proving every

essential element of the crime and the

guilt of the defendant beyond a reasonable

doubt. [Par.] If a defendant does not have

the knowledge that he would need to deny or

to explain evidence against him, it would

be unreasonable to draw an inference

unfavorable to him because of his failure

to deny or explain such evidence."

2/ All further statutory references are

to the Penal Code unless otherwise

specified.

4/ The instruction appellate counsel

suggests should have been given is: "If

the evidence shows that the defendant had a

mental disorder, or mental disorders, at

the time of the alleged crime, you should

consider that fact in determining whether

the defendant had such specific intent."

In fact, a CALJIC pattern instruction

would have been directly on point. CALJIC

No. 3.32 reads: “Evidence has been

received regarding a mental disorder of the

defendant at the time of the crime charged.

You may consider such evidence solely for

the purpose of determining whether or not

the defendant actually formed the mental

state which is an element of the crime

charged, to wit, robbery."

5/ The Court sentenced defendant to the

lower term of two years for the robbery and

an additional term of three years for

personally using a firearn.

6/ Section 1203.06 provides, in pertinent

part: "Notwithstanding Section 1203:

[Par.] (a) Probation shall not be granted

to, nor shall the execution or imposition

of sentence be suspended for, any of the

following persons: [Par.] (1) Any person

who personally used a firearm during the

commission or attempted commission of any.

of the following crimes: ... . [Par.] (B)

Robbery, in violation of Section 211." The

Supreme Court has upheld section 1203.06 as

a permissible exercise of the legislative

prerogative to define crimes and prescribe

punishments. (People v. Tanner (1979) 24

Cal.3d 514, 520.)

Based on section 1203.06 and the

particular facts of this case, the court

twice stated that a mandatory prison

sentence was required. First, when after

the jury reached its verdict, a juror asked

about the penalty, the court said: "You

have to understand that in this case,

because he personally used a firearm, this

is a mandatory state prison commitment.

There’s no alternative. I don’t have any

choice in this regard because the

Legislature has said if you commit a

robbery with a firearm handgun, it’s a

mandatory state prison." Second, at

sentencing, the court announced, "The court

has discussed this with counsel in

chambers. In this particular case this is

a mandatory state prison commitment. The

court has no choice, in the court’s view,

in this particular matter."

7/ The California Supreme Court quoted

the following language from Enmund v.

Florida (1982) 458 U.S. 782 for the

proposition that punishment must fit the

defendant’s own conduct and his personal

culpability: "*Enmund’s criminal

culpability must be limited to his

participation in the robbery, and his

-'" (People

v. Dillon, supra, 34 Cal.3d at p. 482;

emphasis added by Supreme Court.)

FILED

JAN 12, 1996

Court of Appeal-Sixth

App. Dist.

DEPUTY

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE

Plaintiff and Respondent, No. H012794

vs. uperior Court

No. 165146

ee ee ee ee ee ee ee ee ee ee”

Defendant and Appellant.

BY THE COURT*

Appellant’s petition for rehearing

is denied.

Dated: Jan. 12, 1996

RE- OUK :

ACTING P.J.

*Before Cottle, P.J., Bamattre-Manourkian,

J., and Wunderlich, J.

APPENDIX B

Supreme Court

FILED

MAR 13, 1996

Robert Wandruff Clerk

DEPUTY

Sixth Appellate District

No. $§051359

IN THE SUPERIOR COURT OF CALIFORNIA

THE PEOPLE, Respondent,

Vv.

NICK JAMES BOVIS, Appellant.

Appellant’s petition for review DENIED.

LUCAS

Chief Justice

APPENDIX C

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.