People v. Bute

STEPHENS, Acting P. J.

By information filed June 19, 1967 defendant was charged in count I with attempted robbery, a violation of Penal Code section 664; in counts II and IV with robbery, violations of Penal Code section 211; and in

[144]

counts III, V and VI, with kidnaping for the purpose of robbery, violations of Penal Code section 209. In all counts defendant was charged with being armed with a deadly weapon during the commission of the offenses. A prior conviction was also charged. Defendant pleaded not guilty and denied the prior conviction. On the date set for trial, pursuant to defendant’s motion, Drs. Marcus and Deering were appointed under Evidence Code section 730 to examine defendant. Thereafter, an additional plea of not guilty by reason of insanity was entered, and a third psychiatrist, Dr. Tweed, was appointed under Penal Code section 1027 to examine defendant. Before proceeding with the trial, defense counsel requested the court to declare whether there was a present doubt as to defendant’s ability to proceed at that time. The trial judge stated that he did not entertain any doubt and found that defendant was able to proceed. Thereafter, trial by jury was waived and by stipulation, counts II and IV were submitted on the transcript of the preliminary hearing. By further stipulation, the issue of defendant’s sanity at the time of the commission of the offense was submitted on the doctor’s reports and on the testimony given at the preliminary hearing. Defendant was found guilty on counts II and IV, robbery in the first degree in violation of Penal Code section 211. The court found that defendant was armed at the time of the commission of the offenses. Defendant was found to be sane at the time of the commission of the offenses. Probation was denied. Defendant’s motions for new trial and stay of execution were denied. Defendant was sentenced to state prison for the terms prescribed by law, the sentences to run consecutively. The remaining counts against defendant were dismissed. No finding was made on the alleged prior conviction. Defendant appeals from the judgments of conviction entered against him.

The facts relative to the two offenses need not be set forth since procedural error occurring at the commencement of trial requires reversal.

At the time set for trial, the court had before it three psychiatric reports. The report prepared by Dr. Marcus concluded that defendant was sane at the time of the commission of the offenses but that he was presently unable to understand the nature and purpose of the proceedings taken against him and to conduct his own defense in a rational manner. Dr. Marcus’ conclusions were based on an interview with defendant and on various data submitted to him including informa