Ceballos

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…