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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. N. K. FIELDS, Defendant and Appellant.

Cr. 4502.

Decided: October 19, 1964

N. K. Fields, in pro. per. Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Robert R. Granucci, Deputy Attys. Gen., San Francisco, for respondent.

This is a purported appeal by defendant in pro. per. from an order committing him to the Atascadero State Hospital after a jury found him insane following proceedings instituted pursuant to section 1368 of the Penal Code. It is unnecessary to discuss the substantive issues raised by the defendant in view of our conclusion that the order in question is nonappealable.

The facts are not in dispute. On April 30, 1963, defendant was charged by an information with a felony, receiving stolen property, in violation of section 496 of the Penal Code. At the arraignment on May 1, 1963, he entered a plea of not guilty and the matter was set for trial June 18, 1963. On June 3, on motion of defendant's attorney, the criminal prosecution was suspended pursuant to section 1368 of the Penal Code1 as there was doubt as to his ability to cooperate with his attorney in his own defense. Two psychiatrists were appointed to examine him. After the reports of the psychiatrists were filed, defendant attempted to dismiss his motion under section 1368 of the Penal Code and waived his right to hearing under that section. As the court still doubted the sanity of defendant and the reports of the psychiatrists indicated that he was not capable of cooperating with his attorney or appreciating the nature and quality of his acts, his motion to dismiss was denied and the matter set forth jury trial on September 11, 1963. Before trial, defendant discharged his third court-appointed counsel and insisted on representing himself. After an eight day hearing, the jury returned a verdict finding defendant insane. The court suspended the criminal proceedings and committed defendant to the Atascadero State Hospital (Pen. Code § 1370) for care and treatment until pronounced sane (Pen. Code § 1372). This appeal ensued.

We must initially determine, in this case of first instance, whether the judgment committing defendant to a state hospital under section 1368 of the Penal Code is an appealable order.

While the proceedings here in question are pursuant to sections of the Penal Code, it does not follow that defendant was committed to the state hospital under a penal legislative sanction (In re De La O, 59 Cal.2d 128, 28 Cal.Rptr. 489, 378 P.2d 793). The proceedings under Penal Code sections 1367–1372 are neither civil nor criminal actions but are special proceedings of a civil nature (People v. Loomis, 27 Cal.App.2d 236, 80 P.2d 1012). Thus, the right of defendant to appeal is not prescribed by the provisions of Penal Code section 1237 but rather by section 963, subdivision 1, of the Code of Civil Procedure which specifies that a final judgment in a special proceeding is appealable (3 Witkin, California Procedure, Appeal, § 16, pp. 2158–2160). The crucial question then is whether defendant's commitment was a final judgment.

It is argued that of the many kinds of special proceedings in the law of this state, those most analogous to the proceedings here involved are commitments for sexual psychopathy (Welf. & Inst. Code, §§ 5500, etc.) and narcotic addition (Pen. Code, §§ 6399, etc.). Orders of commitment in both of the latter have been held appealable as final orders in special proceedings pursuant to Code of Civil Procedure, section 963, subdivision 1 (Gross v. Superior Court, 42 Cal.2d 816, 270 P.2d 1025; In re De La O, 59 Cal.2d 128, 28 Cal.Rptr. 489, 378 P.2d 793). In one significant respect, however, the sexual psychopath and narcotic commitments differ from the instant proceedings under Penal Code sections 1368, etc. Both are instituted only after conviction of a criminal offense (Welf. & Inst. Code, § 5501; Pen.Code, §§ 6450 and 6451) and the commitment for treatment is an alternative to the sentence and is a final order.

The proceedings under Penal Code section 1368 are instituted before conviction and do not result in a final disposition. A person committed pursuant to this section is not, as pointed out in In re Cathey, 55 Cal.2d 679, 691, 12 Cal.Rptr. 762, 361 P.2d 426, merely a mentally ill patient committed only for treatment but is also a defendant held for trial when he recovers sanity. Pursuant to Penal Code section 1370, the order committing a defendant to the state hospital provides that upon becoming sane, he is to be redelivered to the sheriff.2 While thus recognizing that the mental condition of a defendant so committed may change from time to time, the duty of determining when his sanity is restored is placed on the superintendent of the hospital in which he is confined (Pen.Code § 1372; In re Phyle, 30 Cal.2d 838, 186 P.2d 134). After the superintendent determines that a defendant placed in his custody pursuant to sections 1370 and 1372 of the Penal Code is sane, he is returned to the court for the criminal proceeding. It is not necessary to vacate the verdict finding him insane (People v. Rice, 83 Cal.App. 55, 60, 256 P. 450) nor to institute another judicial inquiry as to his sanity, before the trial may proceed (In re Phyle, supra, 30 Cal.2d 838, 844–845, 186 P.2d 134). Furthermore, if a doubt again arises during the continued trial as to the present sanity of the defendant, another inquiry pursuant to section 1368 may be instituted. Thus, a determination of the mental condition of the defendant made at one time does not foreclose a further inquiry at a later date (People v. Ashley, 59 Cal.2d 339, 29 Cal.Rptr. 16, 379 P.2d 496).

Proceedings under Penal Code section 1368 are comparable to those determining the sanity of a defendant before execution under sections 3700–3704 of the Penal Code. In fact, sections 1372 and 3704 of the Penal Code have been held to be in pari materia as both were adopted in 1905 and had their origin in similar provisions of the Criminal Practice Act of 1851 (Stats. 1851, p. 278, § 591). (In re Phyle, 30 Cal.2d 838, 845, 186 P.2d 134.) It has been held that an order relating to the defendant's sanity made pursuant to sections 3700–3704 of the Penal Code after an earlier affirmance of the judgment of conviction is nonappealable as ‘* * * there is no real finality to any verdict or order entered in such proceeding.’ (People v. Riley, 37 Cal.2d 510, 514, 235 P.2d 381, 383.) The court emphasized that a determination of sanity made in one inquiry initiated under Penal Code sections 3701–3704 did not preclude a further inquiry at a later date. Although frequently criticized3 the due process aspects of the procedure under sections 3701–3704 of the Penal Code were affirmed in Caritativo v. California (1958) 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531).

Another persuasive reason for finding the order in question nonappealable is presented by People v. Scarborough, 52 Cal.App.2d 210, 125 P.2d 893, which held that a defendant may not appeal an order committing him to the state hospital after he has been found not guilty by reason of insanity. The court reasoned that the defendant in such a situation has no adverse judgment or order entered against him. The instant case is somewhat similar since defendant's commitment was brought about after a hearing instituted on the motion of his own attorney. It would seem anomalous to allow a defendant to appeal an order which his own counsel requested the court to make.

We conclude that the order here involved is not a final order in a special proceeding under section 963, subdivision 1, of the Code of Civil Procedure and is, therefore, not appealable. The defendant is not, however, without access to a judicial forum. Anyone held in custody as an insane person under the laws of this state is entitled to petition the court of proper jurisdiction for a writ of habeas corpus, and a determination of the sufficiency of the commitment, as well as his present mental capacity to effectively participate in his defense at the criminal proceeding (Cal.Const., art. VI, §§ 4–5; In re Cathey, 55 Cal.2d 679, 691, 12 Cal.Rptr. 762, 361 P.2d 426; People v. Superior Court, 4 Cal.2d 136, 145, 47 P.2d 724). Defendant being confined at Atascadero, this court, because of its jurisdictional limitation, is foreclosed from considering the appeal filed herein as such a petition (People v. Del Campo, 174 Cal.App.2d 217, 221, 344 P.2d 339).

The appeal is hereby dismissed.


1.  The procedure provided in sections 1367–1372 of the Penal Code prohibits the trial of an accused unless he understands the nature of the proceedings against him and can assist in preparing a rational defense. If he cannot, he is hospitalized until restored to sanity. Section 1368 provides ‘If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined * * *.’ and the criminal trial is immediately suspended. Although the section authorizes the court to act on its own motion, the usual practice appears to be for a defense counsel to raise the issue by motion, supported by affidavits (Witkin, California Criminal Procedure, Trial, § 510, p. 516).

2.  If the criminal charges are dismissed before the defendant regains his sanity, the commitment remains in effect as a commitment of a mentally ill person under the Welfare and Institutions Code.

3.  See for example 9 U.C.L.A. L.Rev. 391, 393, 73 Yale L.J. 433.

TAYLOR, Justice.

SHOEMAKER, P. J., and AGEE, J., concur.