Welborn

Appellant Rodney Keith Welborn was charged with one count of murder (Pen. Code, § 187). He was first tried in 1966. At his first *718 trial he pleaded not guilty and not guilty by reason of insanity. By stipulation, he was tried by the court, the plea of not guilty was submitted to the court upon the transcript of the preliminary hearing and a conversation between appellant and an investigating officer. He was found guilty of murder of the first degree. The sanity issue was also submitted to the court by stipulation upon the reports of five psychiatrists. None of these reports were offered or considered during the guilt phase of the trial. He was found sane and sentenced to life imprisonment.

On appeal, this court reversed. 1 We held that the failure of defense counsel to present psychiatric testimony or argument during the guilt phase of the trial to establish a defense of diminished capacity “resulted in a total failure to present the cause of the defendant in any fundamental respect, and thereby deprived him of his constitutional right to effective aid of counsel.”

Appellant’s retrial began on July 29, 1968. His plea of not guilty was tried to a jury. The sole…