MEMORANDUM DECISION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is a petition for a writ of habeas corpus. Petitioner is presently incarcerated in the California State Prison at San Quentin pursuant to a conviction on November 20, 1964, for second degree murder after a plea of guilty. An order to show cause was issued, and an evidentiary hearing has been held by this Court at which the defendant was present and represented by counsel.

On this petition two basic points have been raised. Petitioner argues that at the time he entered his plea of guilty he was mentally incompetent to do so. Second, he argues that he was denied due process in the proceedings which led to his conviction because the trial court failed to hold a hearing to determine petitioner’s competency to proceed when the trial court had in fact doubt, or as a matter of law was required to entertain doubt as to petitioner’s sanity, which hearing is required by California Penal Code, § 1368 and by the petitioner’s constitutional rights under Pate v. Robinson, 383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed. 2d 815 (1966).

The following is the chronological background of the facts in this case. The crime for which petitioner was convicted took place on April 24, 1964, and petitioner turned himself in to the authorities the same day. He was placed in custody at San Francisco County Jail. On May 15 petitioner was arraigned on charges of murder and assault with a deadly weapon with intent to commit murder (for the shooting of a second person who survived). The killing was the climax to an involved love affair with the girl he killed. The girl had rejected him and petitioner was attempting to force her to fly to Reno, Nevada, and to marry him either by threatening to shoot *257 himself or, by the prosecution’s theory, by threatening to shoot her.

During most of the time relevant to this inquiry until his treatment at California State Medical Facility at Vacaville in September, petitioner acted very depressed and expressed a desire to be sentenced to die in the gas chamber.

On May 29 the physician at the county jail certified petitioner to the Detention Ward of San Francisco County General Hospital for treatment following a diagnosis that petitioner was then “suffering from suicidal tendencies and * * * [was] considered a suicide risk.” P’s Exh. 3. While at the hospital petitioner was examined by two medical examiners, and they made the following observations.

“Not presently psychotic, but potential suicide risk.

“Dated: 6/4,1964 [signed] P. O. Poliak

Medical Examiner

[signed] S. Leland

D’s Exh. G. Medical Examiner.”

An examination by another doctor dated June 4 reads in part as follows:

A third observation from the hospital records, dated June 4, is as follows:

The contents of the first report were transmitted to the trial court, but there is nothing to indicate that the complete hospital records were ever before the trial court.

*258 The public defender’s office represented petitioner at first, but on June 24, private counsel, Mr. Jack Berman, was retained. Mr. Berman represented petitioner throughout the remainder of the criminal proceedings except for a brief period in September when he was discharged by petitioner. Mr. Berman testified as a witness before this Court in this habeas corpus proceeding.

Throughout his contact with the petitioner, Mr. Berman found him to be coherent and had no trouble communicating with him. Petitioner indicated to Mr. Berman that he definitely did not want to enter an insanity plea, that he was opposed to being examined by psychiatrists, and that he preferred being executed to being sent to a mental institution. Mr. Berman had extended conversations with petitioner regarding petitioner’s background, the events leading up to the shooting, the elements of and the penalties for the crimes from manslaughter to first degree murder, and the elements of the crime of assault with intent to commit murder. Mr. Berman never had any doubt that petitioner was fully conscious and understood the nature of the legal proceedings that transpired and understood his conversations with Mr. Berman. Mr. Berman did feel that petitioner was depressed the whole time and that he was suffering from a mental illness.

In early August Mr. Berman arranged for the petitioner to be examined by a private psychiatrist, Dr. Faircloth, at the County Jail. After reviewing the findings of the psychiatrist, Mr. Berman concluded that there was no insanity defense available, and neither he nor the psychiatrist felt that the petitioner’s mental illness was sufficiently acute that he was mentally incompetent to understand the proceedings or cooperate in his defense with his lawyer.

On August 24 petitioner pleaded guilty to a charge of second degree murder, and the assault charges against him were dropped. On August 28 the County Jail physician again had petitioner sent to San Francisco General Hospital for study because petitioner “was suffering from suicidal tendencies and * * * [was considered] a definite suicidal risk.” P’s Exh. 4. The hospital report following a mental examination at this time is as follows:

“MENTAL EXAMINATION

General attitude and behavior Relates fairly well

Stream of talk Spontaneous

Emotional status (affect & Mood) Depressed

Content of thought and abnormal mental trends

(record abnormal content, delusions or hallucinations, if present)

None

Mental grasp and capacity

Attention and Apprehension Good

Orientation (record answers, if not oriented)

Well-oriented

General Intelligence Above-average

Memory Good

Insight and judgment Fair

“IMPRESSION

(1) Reactive depression in obsessive-compulsive personality

“RECOMMENDATIONS

(1) Institution” P’s Exh. 11, p. 5

*259 On September 8 there was a hearing during which there was some discussion regarding petitioner’s competency, and this is quoted below:

There follows a long explanation by petitioner of his motives for wanting to be executed, or in the alternative to he sentenced without the Vacaville study, and the Court interrupts as follows:

Also, on September 8 the Superior Court ordered that petitioner be given a ninety-day study at the California State Medical Facility at Vacaville under California Penal Code, § 1203.03. This section is intended primarily as a sentencing aid in cases where probation is a possibility. However, in this case even though the trial judge had no intention-of granting probation, he felt that the facilities for treatment at Vacaville were superior to those at regular penal institutions and that some good preliminary treatment and diagnosis would aid petitioner’s adjustment to penitentiary life and start him on an earlier road to recovery. The final report from Vacaville that followed this more extensive treatment is quoted below to the extent it bears on the question of his mental competency at that time:

On November 20 petitioner was sentenced under the provisions of California law for second degree murder and he is presently serving that sentence.

Just prior to the hearings before this Court petitioner was interviewed by a psychiatrist, Dr. Blinder. Dr. Blinder also examined most of the records from the 1964 criminal proceedings and the hospital records. He testified that it was his conclusion that petitioner was at the time he entered his plea of guilty mentally incompetent to do so. The area of incompetence was that petitioner at that time could not have and did not have any knowledge regarding the motives for and the basic causes of his act of shooting his girl friend and the landlady. However, Dr. Blinder did testify that petitioner’s incompetency was well hidden behind a mass of rational conduct.

The trial judge who presided over almost all of petitioner’s sentencing proceedings testified that during all of these appearances petitioner exhibited lucidity and superior intelligence, but that he was clearly depressed.

This Court has concluded that most of the basic evidence before it is not substantially conflicting. Only the conclusions to be drawn from it are disputed. On the issue of whether the petitioner was denied due process because the trial court failed to hold a hearing to determine mental competency to proceed this Court finds as follows: The test to be applied is “whether, no less on hindsight than by foresight, there were elements of such indication in the situation as, if proper notice had been taken of them, could present a substantial question of possible doubt as to [petitioner’s] competency to stand trial.” Rhay v. White, 385 F.2d 883, at 886 (9th Cir. 1967). While petitioner expressed his desire to be sentenced to capital punishment for his crime, attempted suicide several times, and was considered extremely depressed and mentally ill by all who observed him, these facts were not such as to present a substantial question of doubt as to petitioner’s competency to proceed when at the same time petitioner was acting rationally, speaking lucidly, a psychiatric report from San Francisco County Hospital described him as “presently sane (but depressed)”, D’s Exh. F 1 , Mr. Berman had indicated to the sentencing judge the fact that petitioner had been examined by a psychiatrist and that from both the psychiatrist’s and Mr. Berman’s points of view there was no problem with petitioner’s competency to proceed, and the petitioner himself was vigorously protesting any suggestion that he was incompetent.

Petitioner introduced some abbreviated, handwritten notes that were taken down by Mr. Berman during a telephone conversation with the private psychiatrist following his examination of petitioner. The notes are as follows:

These notes to some extent contradict the direct testimony of both Mr. Berman and the psychiatrist, Dr. Faircloth, by indicating that petitioner was suffering from a more severe mental illness than that described by the testimony of the two men on the witness stand. However, these notes do not bear expressly on the issue of competency to proceed. Also these notes were not before the trial court; indeed, regardless of what they meant to Mr. Berman when he wrote them, at the time he discussed the matter of competency with the trial court, he represented to the trial court that no problem of competency was indicated by the psychiatrist’s report. Finally, this Court considers the force of these variations to be outweighed by all the remaining evidence before this Court showing petitioner competent to proceed: the more formal psychiatric reports of the County Hospital and the Vacaville report, plus petitioner’s general appearance, attitude, and ability to communicate during the 1964 proceedings.

With regard to the petitioner’s argument that the conversation, quoted above, between petitioner, the trial judge, and Mr. Berman is by itself sufficient evidence of the trial judge’s doubt as to petitioner’s sanity and competence to proceed, this Court interprets those passages to indicate that the judge did express some doubt as to the voluntariness of petitioner’s plea (an issue not raised in these proceedings except within the context of the issue of competency to proceed), but never expressed any doubt as to petitioner’s competency to proceed. This latter subject was only raised by petitioner’s counsel as an additional response to the subject of the possibility of a plea of not guilty by reason of insanity.

Dr. Blinder's testimony that whatever the extent of petitioner’s incompetency, it was hidden, supports the conclusion of this Court that no objective symptoms of incompetency sufficient to raise a substantial doubt as to petitioner’s competence existed.

The facts in this case are distinguishable from those in Robinson v. Pate, supra, and Rhay v. White, supra. The present petitioner had no previous record of mental illness, and from the time of his treatment, at Vacaville to the present there has been no serious mental illness. The petitioner in Robinson v. Pate, supra, had a long history of seriously disturbed behavior, and the issue of his sanity at the time of trial was raised by his counsel. The petitioner in Rhay v. White, supra, all through his trial suffered mental problems which manifested themselves to both counsel and the trial judge. He also had a long history of mental disturbances including repeated outbursts of violence and other strange incidents which had occurred in his general, behavioral conduct.

Additionally, petitioner has failed to prove that he was in fact mentally incompetent at the time he entered his plea of guilty, or at any of the other proceedings. Dr. Blinder’s testimony, while considered by this Court to be honest and forthright, must be given much less weight than the opinion of the doctors who examined the petitioner back in 1964 during the relevant time. Petitioner’s own inability to remember the events from the time just before the killing until his treatment at Vacaville is considered by this Court to be more of a common defensive reaction to an intolerably unpleasant series of events than a significant indication that he was not competent during the trial court proceedings.

Finally, the offense with which defendant was charged carried the death penalty as a possible end result if the defendant entered a plea of not guilty by reason of insanity and lost. His plea to *263 second degree murder eliminated the possibility of the death penalty. Mr. Berman as competent defense counsel was very much aware that the acceptance of the proposed plea of second degree murder by the trial judge depended on an interpretation of the record as it then appeared to be. Mr. Berman and Schoeller were fully conscious of the hazards of a hearing under section 1368 of the Penal Code where testimony would be taken concerning the background of the offense so far as it went to the mental competency of the defendant. With the psychiatric opinions they had concerning the probable finding of mental competence to proceed, it was tactically a very hazardous decision to ask for a 1368 examination. The evidence produced at such a hearing might have caused the trial judge to refuse to accept the plea to second degree murder, and require a plea to a first degree murder, which charge was then pending. Having made that tactical decision on the basis of competent legal and psychiatric advice, Schoeller should not now be permitted to escape the consequences of his decision which was made to limit the punishment which could be imposed.

Accordingly, it is ordered that this petition for a writ of habeas corpus be, and the same is hereby denied.

. While this report is undated, it seems to have been sent to the trial judge following the first examination at S. F. Cty. Hosp. between May 29 and June 11, because it is signed by the same two doctors who made up the report dated June 4, D’s Exh. G. In any case it would have been in the judge’s possession by the September 8 hearing when the discussion of petitioner’s competency took place.