People v. Ceballos

Opinion

ROTH, P. J. Appellant was convicted by a jury on three counts of assault with a deadly weapon, viz., a shotgun, in violation of Penal Code section 245, subdivision (a) and was found to have used that firearm in the commission of the offenses, agreeably with Penal Code section 12022.5.1 He was sentenced to state prison for the upper base term of four years with two additional years imposed on the use finding.

On this appeal the sole contention (see fn. 1) is that appellant did not receive the effective assistance of trial counsel when the public defender who represented him failed to fully investigate and present a defense of diminished capacity and did not file a statement in mitigation on the same basis during the probation and sentencing hearing.

As presented here, it is claimed appellant functions mentally within the limits of borderline mental retardation and that his judgment is poor and his insight nil. In support of the claim, appellate counsel submits a “Consultation Record” and other medical records to these effects, all of which documents were prepared in 1970, some seven years before commission of the charged assaults, when appellant was about fourteen years old. It is likewise maintained by that counsel’s declaration that trial counsel was aware of appellant’s condition, and that assertion finds support in the record.2

[26]Accordingly, it is suggested, the requirements of People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859] have not been satisfied. We find no merit in the contention and affirm the judgment.3

It has repeatedly been held that assault with a deadly weapon is a “general intent” crime. (See People v. Kelly (1973) 10 Cal.3d 565, 573 [111 Cal.Rptr. 171, 516 P.2d 875]; People v. Rocha (1971) 3 Cal.3d 893, 898-899 [92 Cal.Rptr. 172, 479 P.2d 372]; People v. Hood (1969) 1 Cal.3d 444, 456-459 [82 Cal.Rptr. 618, 462 P.2d 370]; People v. Bedolla (1979) 94 Cal.App.3d 1, 6-7 [156 Cal.Rptr. 171]; People v. Stevenson (1978) 79 Cal.App.3d 976, 988 [145 Cal.Rptr. 301]; People v. Martinez (1977) 75 Cal.App.3d 859, 864 [142 Cal.Rptr. 515].) Concomitantly, it is settled that a defendant charged with a general intent crime cannot raise a defense of diminished capacity, regardless of the extent of impairment of his mental state. (People v. Drew (1978) 22 Cal.3d 333, 344 [149 Cal.Rptr. 275, 583 P.2d 1318].) As general propositions, neither of these conclusions is contested by appellant. Rather it is urged that upon scrutinizing analysis of the decisions cited an argument can be fashioned that they are confined in their rationales and their intended results to instances where the diminished capacity claimed is the result of voluntary action on the part of the defendant and do not apply where, as here, an accused has, through no fault of his own, a mental capacity of lesser proportion than that of the majority of his fellows. Such an argument being possible, says appellant’s present counsel, it was incumbent upon previous counsel to put it forth at the trial. We disagree.