PEOPLE v. MASSIP

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. Sheryl Lynn MASSIP, Defendant and Respondent.

The PEOPLE, Petitioner, v. SUPERIOR COURT of Orange County, Respondent. Sheryl Lynn MASSIP, Real Party in Interest.

Nos. G008366, G007660.

Decided: June 19, 1990

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Thomas M. Goethals and Thomas J. Borris, Deputy Dist. Attys., for plaintiff and appellant. Milton C. Grimes, Santa Ana Heights, and Bryant K. Calloway, San Francisco, for defendant and respondent.

OPINION

The People appeal from an order of the trial court reducing a jury's verdict from second degree murder to voluntary manslaughter and setting aside a finding of sanity.   After entering a new finding of insanity, the People contend, the court imposed an unauthorized commitment.   The People have also filed a petition for a writ of mandate or prohibition on the sanity issue.

I

On March 17, 1987, Massip gave birth to a son, Michael.   Although she was a caring, loving mother, Michael cried 15 to 18 hours a day.   At first, doctors believed he suffered from colic, but suspected later that it was something more.   He was in a great deal of pain and nothing Massip did helped to alleviate it.   She tried feeding him different formulas but he just vomited.

Before giving birth, Massip was a happy, healthy, nonviolent person who looked forward to motherhood.   However, after Michael was born, she began feeling confused and worthless;  and during the next six weeks she could neither sleep nor eat.   She began having suicidal thoughts, such as jumping off a building or out of a window.   She also experienced hallucinations;  voices were telling her the baby was in pain.

On April 25, Massip experienced a blackout or seizure.   Believing she needed rest, she went to her mother's house for the weekend, leaving Michael with his father.   However, she could still hear Michael's cries in her mind.   She felt the room was moving, the walls and ceiling waving, even when she was sitting down.   On April 27, she went to see her obstetrician, who believed she was having a nervous breakdown and prescribed tranquilizers.

On April 29, when Michael began crying again, Massip took him for a walk.   During the walk, she heard voices telling her the baby was in pain and to put him out of his misery;  she felt as if she were in a tunnel and everything was moving slowly.   She was watching her own actions from outside of herself.   At one point during the walk, she saw herself throw the baby in front of a car.   The driver did not recognize the bundle as a baby, but was able to swerve and missed it.   Massip later that day placed Michael under the tire of her car and drove over him.   She then picked him up and walked with him, but did not remember what he looked like.   At that time, she saw him as a doll or an object, not a person.

In fact, Massip had run over her baby, afterward placing him in a trash can, where he was later discovered.   She told her husband the baby had been kidnapped and gave a description of the kidnapper.   Later, when they were at the police station, she admitted to her husband she had killed Michael.

II

Massip entered dual pleas of not guilty and not guilty by reason of insanity.   By stipulation, the guilt and sanity phases were tried together by the same jury.   It returned a verdict of guilty of second degree murder and found Massip was sane at the time the offense was committed.

Massip moved for a new trial on both the sanity finding and the underlying verdict.   On December 23, 1988, after hearing argument, the trial court reduced the verdict to voluntary manslaughter on the ground the verdict was contrary to law and evidence.  (Pen.Code, § 1181, subd. (6).) 1  At the same time, it set aside the finding of sanity, entering a new finding that Massip was not guilty by reason of insanity.   On March 10, 1989, she was ordered to participate in an Orange County Mental Health Agency outpatient treatment program.

The People assert in their appeal that setting aside the sanity finding and substituting a finding of insanity was beyond the court's power.   Moreover, they maintain, even assuming the court could do so, it was required, pursuant to section 1601, subdivision (a), to first commit Massip to a hospital for a minimum of 180 days.2

Anticipating the questionable appealability of the insanity finding and commitment order, the People also filed a petition for a writ of mandate on July 5, 1989, which we ordered consolidated with this appeal.3  We first address the issue of appealability.

The Legislature has given the People the right to appeal only in certain instances, enumerated in section 1238.   Under subdivision (a)(6), an appeal lies from “[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”   The court's actions relating to the sanity finding do not fall within this provision.   While the trial court did modify the finding of sanity, it did not do so by “reducing the degree of the offense or the punishment” nor by “modifying the offense to a lesser offense.”

 Other appealable trial court orders are likewise inapplicable here:  the court did not grant a new trial (§ 1238, subd. (a)(3)), make an order after judgment affecting the rights of the people (§ 1238, subd. (a)(5)), or impose an unlawful sentence (§ 1238, subd. (a)(10)).4  (See People v. Morales (1989) 48 Cal.3d 527, 560, fn. 1, 257 Cal.Rptr. 64, 770 P.2d 244.)   Because no other subdivision applies, it is clear the Legislature did not provide the People a statutory right to appeal from either an order setting aside a jury finding of sanity or a commitment for insanity.   We note under section 1237 a defendant has a right to appeal from “the commitment of a defendant for insanity,” and so cannot conclude it was simply an oversight to fail to endow the People with that right as well.5  On the other hand, section 1238, subdivision (a)(6) specifically does allow the People to appeal from the order modifying the second degree murder verdict to voluntary manslaughter, and they have done so.  (See Part III, infra.)

 It does not necessarily follow that, where the Legislature has denied an appeal, the People may proceed by writ.   The applicable legal principle was set out in People v. Superior Court (Stanley ) (1979) 24 Cal.3d 622, 625–626, 156 Cal.Rptr. 626, 596 P.2d 691:  “If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.  [Citations;  fn. omitted.]”

The application of the term “excess of jurisdiction” was explained in People v. Superior Court (Howard ) (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138, where the Supreme Court concluded the acts complained of must “exceed the defined power of a court in any instance whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis. ”   (Id. at p. 500, 72 Cal.Rptr. 330, 446 P.2d 138.)   But the court observed if that were the extent of the rule, review by writ would be allowed in every instance, thereby frustrating the Legislature's intent to limit appellate review by the People.   It therefore added the second prong, requiring “balancing of the competing considerations of preventing harassment of the accused as against correcting possible errors,” in order to “give meaningful effect to the legislative policy limiting review and the burdens on the defendant.”  (Id. at p. 501, 72 Cal.Rptr. 330, 446 P.2d 138.)

Beginning with the question of whether the trial court exceeded its jurisdiction, the court clearly had the power to set aside the jury's finding of sanity when it found “as a matter of law” Massip's insanity had been established.   But we have no trouble finding it exceeded its power, as expressly defined by the Legislature, in entering a new finding of insanity.   Section 1181, subdivision (6) allows a court to “grant a new trial ․ [w]hen the verdict or finding is contrary to law or evidence․”  (Emphasis added.)   However, the court may modify a verdict, without granting a new trial, only where it reduces the degree of a crime or enters a verdict on a lesser included crime.   Therefore, the trial court, once it set aside the jury's finding, had the power only to grant a new trial on the sanity phase.6  It could not enter a new finding.7  (People v. Morgan (1977) 75 Cal.App.3d 32, 39, 141 Cal.Rptr. 863.)

We are not persuaded by Massip's argument that the court had implied authority to act as it did under either section 1385 or 1118.1.   Section 1385 authorizes a court to “order an action to be dismissed,” on its own motion or on the prosecution's motion, in the interest of justice and for reasons stated in the minutes.   The court here did not purport to act under this section and was acting on the defendant's motion, not his own or the prosecutor's.   Moreover, the action was not dismissed.   Section 1118.1 grants the court power to enter a judgment of acquittal where it finds the evidence insufficient to sustain the conviction.   By its terms, the statute applies before the case is submitted to the jury and refers only to “convictions,” not to “findings” in other proceedings.   We have already acknowledged the court's authority to set aside the jury's finding under section 1181, subdivision (6);  it is the substitution of a contrary finding that is not authorized by any of these sections.

Next, Massip urges that while entry of a judgment notwithstanding the verdict is a concept foreign to criminal law (People v. Morgan, supra, 75 Cal.App.3d at p. 39, 141 Cal.Rptr. 863), it may be used here because the instant proceeding is “quasi-civil” in nature, analogous to proceedings under sections 1368 and 1026.2.   Section 1368 establishes a procedure for determining a defendant's competence to stand trial, while 1026.2 concerns applications for a finding that sanity has been restored.   The People concede both these proceedings are subject to judgments notwithstanding the verdict, but argue they are distinguishable from the section 1026 sanity phase trial as proceedings collateral to the determination of guilt.   We agree the section 1026 sanity phase is criminal in nature.   To hold otherwise would be to declare that such trials do not fall within the protections of criminal law and procedure.   Such a result would be absurd, since the sanity phase is not a separate trial, even when it is bifurcated;  it is merely a separate part of the same trial, which is itself criminal.  (People v. Villarreal (1985) 167 Cal.App.3d 450, 458, 213 Cal.Rptr. 179.)   Moreover, as we have previously noted, a “finding” with respect to sanity is not a judgment.   No basis exists for judicial entry of a finding of insanity, once the jury's sanity finding has been set aside.

The second prong of the Howard test is more troublesome.   Because the order setting aside the sanity finding was within the court's power, only the order substituting the insanity finding would be affected by writ relief.   Therefore, the sole remedy we could provide if a writ issues would be a new trial on the sanity phase.   Of course, this runs directly afoul of the Howard rule, which “prohibits review by mandate at the request of the People where ․ there is a danger of further trial or retrial.”  (People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501, 72 Cal.Rptr. 330, 446 P.2d 138.)   In People v. Superior Court (Biggs ) (1971) 19 Cal.App.3d 522, 97 Cal.Rptr. 118, the Court of Appeal similarly refused to issue a post-trial writ in favor of the People, strictly construing the Howard admonition to render it powerless to do so where the writ would expose the accused to a possible retrial.  (Id. at p. 535, 97 Cal.Rptr. 118.)   In the instant case, retrial is not only possible—it would be mandated.

The anomaly facing us here is that Massip herself had sought only a new trial by her motion.   What she received was, essentially, what the parties have loosely termed the criminal law equivalent of a judgment notwithstanding the verdict.   She could hardly complain if a writ issued giving her that which she would have received had she prevailed.   Further, we deal here, not with retrial on the merits of the offense;  rather, a new trial would focus solely on the issue of Massip's sanity.

Nevertheless, we cannot avoid the conclusion that Massip would be exposed to the full panoply of dangers anticipated in Howard—retrial and punishment.   Were she to be found sane after retrial, she would be exposed to a prison sentence.

It is appropriate at this point to consider Massip's argument that the petition was not timely filed.   Although we will not dismiss the petition on this basis,8 the delay is relevant to our consideration of the harm to Massip that would be occasioned by issuance of the writ.

The order setting aside the sanity finding was made on December 23, 1988.   At that time, the court told the People, “you may wish to take a writ on what the court has done, which is extraordinary relief in my eyes, and I know in most everybody's eyes.   I'll stay the proceedings pending the determination of whether you want to take a writ.   If you don't want to make that decision today, Mr. Borris, that will be fine.   I'll stay the proceedings anytime that you make application.”   The prosecutor agreed to let the court know whether writ relief would be sought and a date was set for further proceedings.   By March 10, 1989, the date Massip was finally ordered into treatment, no stay had been requested and no petition for a writ filed.   A petition was filed in this court on July 10, nearly six months after the order entering a finding of insanity, and nearly three months after the notice of appeal was filed.9

An unreasonably long delay in filing the initial petition necessarily imposes a substantial burden on this defendant, who is undergoing mental health treatment.   The issuance of a contrary order is bound to have a disruptive effect on her progress and may result in setbacks.   There is thus a greater impact in such a case than the usual.10  To minimize the harm to Massip, the People had a duty to seek immediate review of the illegal order.

We now turn to an aspect of the analysis not faced by the Biggs court, i.e., whether the issue presented is of such unusual importance as to warrant review even in the face of the prejudice to the defendant.  (People v. Superior Court (Howard ), supra, 69 Cal.2d at p. 501, 72 Cal.Rptr. 330, 446 P.2d 138.)   Although, by the court's own admission, its actions were extraordinary, on balance we are hard pressed to conclude the legal question is so exceptional as to justify imposing the burden of retrial.   The issue of the power of the trial court is simply one of legislative direction which, we have determined, was not carried out.   Nonetheless, the Legislature has left the People without a remedy and the courts have fashioned only a narrow one, which is inapplicable here.

The Legislature's restriction of appellate rights “is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but is a substantive limitation on review of trial court determinations in criminal trials.  [Citations.]”  (People v. Superior Court (Howard ), supra, 69 Cal.2d at p. 498, 72 Cal.Rptr. 330, 446 P.2d 138.)   The harshness of the Howard rule has frequently been recognized and presents reviewing courts with a difficult balance.   Once it is determined that a trial court has acted without authority it appears, at first blush, unreasonable to deny the People relief.   However, it is clear the rule anticipates such a result.   The analysis is premised upon the existence of an act in excess of jurisdiction and thus accepts the possibility that there may exist a wrong without a remedy.

The People's complaint regarding the trial court's action in committing Massip directly to an outpatient program suffers the same disability, precluding review.   The commitment was not a sentence and so not governed by the statutory authority for appeals of unlawful sentences.  (§ 1238, subd. (a)(10).)  Although the court went beyond the direction of section 1601 when it failed to commit Massip to a hospital for 180 days before ordering her to an outpatient program, our analysis of the availability of writ relief must necessarily parrot the one above.   Therefore, the writ is denied and the appeal noticed on April 4, 1989 is dismissed.

III

 On appeal from the trial court's reduction of the verdict from second degree murder to voluntary manslaughter, the People contend that after Proposition 8, enacted by voter initiative, the court lacked the power to enter a manslaughter verdict.   Relying on People v. Spurlin (1984) 156 Cal.App.3d 119, 202 Cal.Rptr. 663, they argue diminished capacity brought on by mental disease or defect has been abolished as a means of negating malice aforethought.  (Id. at p. 128, 202 Cal.Rptr. 663.)

Section 25, subdivision (a), added in 1982 as a result of the ballot initiative, states “[t]he defense of diminished capacity is hereby abolished.”   Section 28, subdivision (a) provides, “[e]vidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state․”   However, it goes on to provide, “[e]vidence of mental disease, mental defect or mental disorder is admissible solely on the issue of whether or not the accused actually ․ harbored malice․” 11

In ruling on the motion for new trial, the court made the following remarks:  “The court is required to independently weigh the evidence.   In reweighing the evidence the court is not bound by the jury's decision, any conflict in the evidence, or any inferences drawn therefrom.   The court is empowered upon motion for new trial to judge the credibility of witnesses, resolve conflicts in the testimony, give weight to or reject evidence, draw facts and conclusions from the evidence, independent of those drawn by the jury.  [¶] In doing so, I have determined from the evidence that on the day of the killing the defendant's mental condition was disrupted and delusional from a postpartum depression and at times a postpartum psychosis.   I do not believe the People's evidence has established beyond a reasonable doubt that the defendant possessed the requisite mental state of malice aforethought at the time of the killing.   Therefore, the court, having the power and responsibility to effect justice, does set aside this jury verdict as contrary to law and evidence.  [¶] As to the guilt phase of the trial I find from the weight of all the evidence beyond a reasonable doubt that this defendant is guilty of voluntary manslaughter and not guilty of second degree murder.”  (Emphasis added.)

The court's remarks clearly reflect its view that there was a failure of proof as to an essential element—malice.   The court did not find Massip's mental state negated her capacity to harbor malice;  it found malice actually did not exist.   Therefore, section 28, subdivision (a) does not appear to be directly offended.

This does not resolve the matter, however.   The People argue it was legally impossible for the court to find Massip guilty of voluntary manslaughter.   They maintain that offense now exists only under certain legislatively and judicially prescribed circumstances, i.e., where a murder is committed upon “sudden quarrel or heat of passion” (Pen.Code, § 192, subd. (a)) or under an unreasonable but honestly held belief in the need to defend one's self.  (People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1.)   It is conceded neither of these circumstances exists here.   In other words, the People urge, the mens rea for voluntary manslaughter is simply a “mitigated” malice.   This mitigation may occur only under the two stated circumstances.   A third, diminished capacity, was eliminated by Proposition 8 insofar as it is a method of “negating,” or “mitigating,” malice which otherwise exists.   Therefore, if neither of the two proper means of negating malice was operating here, the court could not properly have found an absence of malice.

Nonetheless, the People concede “if a defendant's mental illness is found by the trier of fact to have prevented the formation of malice aforethought at the time he unlawfully killed a human being, and none of the statutory or legal circumstances discussed above exist[s] to allow a finding of manslaughter, the offense committed can only be involuntary manslaughter, since a defendant is still criminally responsible for any unlawful killing.”

Under section 192, a murder without malice is manslaughter, which in turn may be of three varieties:  voluntary, involuntary, and vehicular.   The People's suggestion that because Massip could not be guilty of voluntary manslaughter, her liability drops to the lower level of involuntary manslaughter (aside from the questionable strategy of this position) has no merit.   Involuntary manslaughter is arrived at by “the commission of an unlawful act, not amounting to a felony;  or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”  (§ 192, subd. (b).)  Neither alternative fits the facts here.

The People assert mental illness is simply not an issue in the guilt phase of a trial and is irrelevant except at the sanity phase.   This is clearly contrary to the language of section 28, which specifically allows “[e]vidence of mental disease, mental defect, or mental disorder” on the issue of the actual formation of malice.

The People's argument would effectively eviscerate section 28, subsection (a), to the extent it allows a defendant to prove the absence of the mental state of malice.   This analysis would lead to the result that a defendant may not, with any efficacy, establish he or she did not “actually” form malice.   To achieve the result the People suggest, we would have to declare section 28, subdivision (a) does not mean what it says or that a defendant who establishes an actual lack of malice necessarily commits either involuntary manslaughter or no crime at all.

Express malice (concededly the only kind at issue here) is defined by section 188 as “manifested [by] a deliberate intention unlawfully to take away the life of a fellow creature․  [¶] When it is shown that the killing resulted from the intentional doing of an act with express ․ malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.”   There is no statutory definition of the mental state required for manslaughter, except that section 192 pronounces it “the unlawful killing of a human being without malice.”   Although voluntary manslaughter has traditionally been thought to include the intent to kill, no such requirement appears in the statute;  rather, the term “voluntary” implies the intentional commission of a person-endangering act.

In People v. Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, Justice Tobriner, after examining the nature of malice, concluded as a matter of law that an honest belief in the need to defend one's self, even if unreasonable, is inconsistent with malice.   In such cases, the court held, there is an absence of malice as a matter of law.  (Id. at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1.)   This is so even though an intent to kill is present.

“In short, the state has no legitimate interest in obtaining a conviction of murder when ․ [there is] a reasonable doubt whether the defendant harbored malice.   Likewise, a defendant has no legitimate interest in complete exculpation when acting outside the range of reasonable behavior.  [Citation.]   The vice is the element of malice;  in its absence the level of guilt must decline.”  (Flannel, supra, 25 Cal.3d at p. 680, 160 Cal.Rptr. 84, 603 P.2d 1, emphasis added.)

“As one scholar notes, ‘Since manslaughter is a “catch-all” concept, covering all homicides which are neither murder nor innocent, it logically includes some killings involving other types of mitigation, and such is the rule of the common law.   For example, if one man kills another intentionally, under circumstances beyond the scope of innocent homicide, the facts may come so close to justification or excuse that the killing will be classed as voluntary manslaughter rather than murder.’  (Perkins on Criminal Law (2d ed. 1969) pp. 69–70.)”  (Id. at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1.)   The “catch-all” concept has been incorporated into section 192.   Addressing this point in People v. Mosher (1969) 1 Cal.3d 379, 385, fn. 1, 82 Cal.Rptr. 379, 461 P.2d 659, the Supreme Court agreed that “the enumeration of nonmalicious criminal homicides [in section 192] could not be considered exclusive” when read with the more general pronouncement that all killings done without malice constitute manslaughter.

The People's argument that mental illness may no longer show the absence of malice was recently rejected in People v. Molina (1988) 202 Cal.App.3d 1168, 249 Cal.Rptr. 273, where the court held “the Legislature did not foreclose the possibility of a reduction from murder to voluntary manslaughter where malice is lacking due to mental illness․”  (Id. at p. 1174, 249 Cal.Rptr. 273.)   But in People v. Spurlin, supra, 156 Cal.App.3d 119, 202 Cal.Rptr. 663, the court disagreed, holding diminished capacity is no longer available to “negate” malice.   Spurlin had killed his wife and son and argued that the “extreme emotional disturbance” provoked by his wife carried over to his son's killing, and so should mitigate it.   Declaring the express purpose of sections 25 and 28 is “to abolish the diminished capacity defense and eliminate the judicially created concept of ‘non-statutory voluntary manslaughter,’ ” the court rejected Spurlin's argument he was entitled to an instruction on voluntary manslaughter under a diminished capacity theory.  (Id. at p. 128, 202 Cal.Rptr. 663.)   The Spurlin court did not, however, address the impact of a situation where malice “actually” does not exist.

To deny a defendant the opportunity to rebut the existence of an element of the crime would, of course, violate basic tenets of due process.  (People v. Jackson (1984) 152 Cal.App.3d 961, 968, 199 Cal.Rptr. 848.)   This is not a “judicially created concept,” as Spurlin suggests, but a constitutional and legislative one.   It is by statute that manslaughter is declared to be an unlawful killing “without malice” and that the right to present evidence of a malice-free mental state is confirmed.  (See People v. Mosher, supra, 1 Cal.3d at p. 385, fn. 1, 82 Cal.Rptr. 379, 461 P.2d 659.)   Therefore, proof of the actual absence of malice requires a murder be reduced to voluntary manslaughter or, if applicable, involuntary manslaughter.

The real thrust of the People's argument is that the evidence established Massip intended to kill and malice was thus necessarily present.   The trial court stated it believed she suffered postpartum depression verging on psychosis.   The testimony she offered, which was apparently believed by the court, was that she felt as if she were in a dream world in which she heard voices telling her the baby was in pain.   She watched herself place the baby under the car tire, seeing it as a doll.   The court could reasonably have determined malice was absent, and concluded Massip committed a voluntary manslaughter, if it found an unlawful homicide without a person-endangering state of mind had taken place.

The comments of the trial court reflect a clear understanding of its responsibilities and of the standards to be employed in assessing the jury's verdict.   The People point to conflicts in the evidence which indicate Massip was behaving in a rational manner—specifically, they observe she manufactured a story to cover up her baby's disappearance and the People's mental health expert testified she was not suffering a mental illness.   However, as they also point out, there must be sufficient credible evidence to support the jury's verdict.  (People v. Risenhoover (1968) 70 Cal.2d 39, 73 Cal.Rptr. 533, 447 P.2d 925.)   The prosecution expert, Dr. Kaushal Sharma, was equivocal in his conclusions, agreeing Massip was suffering postpartum depression but concluding she was sane.   He admitted that, had he used a different approach, his conclusion might have been to the contrary.   Clearly the trial court viewed the expert witness and determined his opinion was entitled to little weight.

On the other hand, Massip presented three mental health experts who consistently testified she was psychotic and operating under hallucinations and delusions resulting from severe mental illness, causing her to lose touch with reality.   This evidence, combined with Massip's own testimony, was sufficient to support the trial court's decision to disturb the jury's verdict.

The People also object to the procedure by which the court ruled on the motion for new trial.   The motion was set to be heard on the same day as the sentencing.   At that time, the court allowed the defense to present witnesses and hearsay affidavits relating to sentencing.   The prosecution objected that such a procedure would be unnecessary if the court were to grant the motion for new trial and further objected to the admission of hearsay.   It now argues this testimony improperly affected the court's decision on the motion for new trial.

The short answer is there is no evidence to support such an allegation.   The court merely controlled the order of the proceedings by hearing the live witnesses first.   There is no indication it did so for any improper purpose.   To the contrary, the court indicated it felt confident “There's no reason why the lawyers can't sort out the various problems, including the court.”   It obviously contemplated using evidence solely for the purpose for which it was offered.

The appeal noticed on April 4, 1989 is dismissed.   In all other respects the judgment is affirmed.   The petition for a writ of mandate is denied.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   Section 1601, subdivision (a) provides that any person found not guilty by reason of insanity of any felony involving death shall not be eligible for outpatient status “until that person has actually been confined in a state hospital or other facility for 180 days or more․”

3.   The People entitled their petition “for Writ of Prohibition or Alternatively for Writ of Mandate.”   Prohibition is unavailable here because there is no judicial act to arrest or prevent.   Mandate is generally available to set aside an order which a court did not have discretion to enter and to compel it to issue a lawful order.  (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205, 211 Cal.Rptr. 398, 695 P.2d 695.)   We therefore deem the petition to be one seeking mandate.

4.   Upon a finding that a defendant was insane, section 1026 directs a court to order certain treatment.   Such treatment does not constitute a sentence and no judgment is entered.

5.   The petition alleges there is “no right of appeal,” which we view as a concession.   Massip argues the People do have a right to appeal, presumably making the point that we should not consider the petition.   In People v. Morales, supra, 48 Cal.3d at p. 560, fn. 1, 257 Cal.Rptr. 64, 770 P.2d 244, the Supreme Court concluded the trial court's attempt to enter a judgment notwithstanding the verdict was not an appealable order, but nonetheless reviewed the ruling as part of the automatic death penalty appeal properly before it.   Massip has not appealed.

6.   We do not mean to imply the court acted improperly in setting aside the jury's “sanity” finding.   It ruled “as a matter of law” the defendant had sustained her burden of proving herself insane;  there is substantial evidence to support that ruling.   Accordingly, it had a duty to set aside the jury's finding.

7.   Ironically, had the court acted properly and granted a new sanity trial, that order would have been appealable under section 1238, subdivision (a)(3), which provides for an appeal by the people from an order granting a new trial.

8.   The district attorney conceded at oral argument the petition was untimely due to the failure to recognize the issues were nonappealable (despite the trial court's invitation).   We have excused this defect in view of the fact timely notices of appeal were filed, putting Massip on notice of the intent to seek review.

9.   The People filed a notice of appeal from the December 23 order on January 4.   They filed a second notice of appeal on April 4, from the March 10 order committing Massip to outpatient treatment.

10.   Massip alleges since her March 10, 1989 sentencing she has “received treatment and stabilized her illness and obtained gainful employment;  to again suffer stress from having her future unsure would defeat the purpose of treatment.”   We have considered this in assessing the particular prejudice created by subjecting a defendant to retrial where emotional problems are involved.

11.   Section 28 was added in 1981, but amended after the passage of Proposition 8.   Commentators have differed on the interaction of the two statutes, but Witkin opines, and we agree, that “the better view would seem to be that both statutes remain operative.”  (Witkin and Epstein, California Criminal Law (2d ed. 1989) § 211, p. 242.)

SONENSHINE, Associate Justice.

WALLIN, Acting P.J., and CROSBY, J., concur.