Reset A A Font size: Print

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Sidney KOTTLER, Defendant and Appellant.

Cr. 3484.

Decided: November 03, 1969

James D. Riddet, Santa Ana, for defendant and appellant. No appearance by plaintiff and respondent.


On June 20, 1968 defendant was found guilty of six counts of forgery (Pen.Code, sec. 470) by a jury.   Defendant made application for probation and the hearing on probation and pronouncement of judgment was set for July 18, 1968.   On July 11, 1968, the court suspended criminal proceedings and instituted proceedings under Penal Code, section 1368.1  Psychiatrists were appointed by the court and the hearing was set for August 1, 1968.   Defendant demanded a jury trial in said proceeding.   Subsequently the hearing under Penal Code, section 1368, was set for October 16, 1968.

On September 30, 1968, appointed counsel for defendant informed the court that he was waiving jury trial and would allow the matter to be submitted on the reports of the court-appointed psychiatrist.   Defendant stated at this hearing that this was not agreeable to him;  and that he desired to present evidence in regard to his sanity.   This was denied by the court, and defendant was found by the court to be presently insane and not able to assist in his own defense.

The central issue in this appeal is whether defendant's counsel, over defendant's expressed objection, can waive his right to a jury trial and to present evidence at a Penal Code, section 1368 hearing.

 A hearing under section 1368 is neither criminal nor civil in nature, but rather in the nature of “special proceeding.”  (People v. Hill, 67 Cal.2d 105, 114, 60 Cal.Rptr. 234, 429 P.2d 586;  People v. Loomis, 27 Cal.App.2d 236, 239–240, 80 P.2d 1012.)   Thus, the defendant's right to a jury trial is strictly statutory and not guaranteed by the California Constitution.  (People v. Hill, supra, 67 Cal.2d 105, 114, 60 Cal.Rptr. 234, 429 P.2d 586;  People v. Loomis, supra, 27 Cal.App.2d 236, 239–240, 80 P.2d 1012.)

In People v. Hill, supra, the court held it proper for the court to try the issue presented in a Penal Code, section 1368 hearing without defendant having being advised by either his counsel or the court of his statutory right to a trial by jury.

In a footnote, the court stated:

“Obviously, where the attorney has doubts as to the present sanity of the defendant he should be able to make decisions as to how the proceedings should be conducted.

“When evidence indicates that the defendant may be insane, it should be assumed that he is unable to act in his own best interests.   In such circumstances counsel must be free to act even contrary to the express desires of his client.  (Cf. People v. Gutkowsky, supra, 219 Cal.App.2d 223, 226, 33 Cal.Rptr. 79.)   Conducting the trial according to the dictates of a defendant who, evidence indicates may be insane, can result in prejudicial error.   (People v. Merkouris, supra, 46 Cal.2d 540, 297 P.2d 999.)”  (People v. Hill, supra, 67 Cal.2d 105, 115, fn. 4, 60 Cal.Rptr. 234, 241, 429 P.2d 586, 593.)

Although there is no case directly passing on whether counsel can waive defendant's right to a jury trial and to present further evidence in a Penal Code, section 1368 hearing, where defendant expressly states his wishes are to the contrary, the above dicta in People v. Hill indicates defendant's attorney has that power.

Defendant's counsel on appeal urges that the sanity of defendant is the issue to be decided by the hearing, and that permitting defendant's counsel to waive his rights, on the theory defendant is incompetent to decide whether a jury is necessary, is tantamount to prejudging the issue of sanity.

This argument cannot be sustained since it rests upon the unsound premise that the defendant personally exercises paramount control of procedural matters in conduct of the trial.   Acquiescence by the judge in the waiver of jury by counsel is not required in a civil action.   These proceedings are based upon a doubt as to defendant's sanity which existed by reason of representations made to the trial court by defendant's counsel and the probation officer.   Under such circumstances the court would be derelict in its duty if it permitted defendant to control and direct the proceedings contary to the tactical and procedural decisions of his counsel.   This is not prejudging the issue of sanity.   It is a realistic recognition of the fact that defendant may not be competent to act in his own best interests.   (People v. Hill, supra, 67 Cal.2d 105, 60 Cal.Rptr. 234, 429 P.2d 586.)

Defendant's counsel on appeal suggests that we should follow precedent regarding counsel's powers in civil cases.   However, the cases he cites do not support the position that the above waiver would be outside counsel's powers, but rather support the contrary conclusion.   The general rule is that stated in Roscoe Moss Co. v. Roggero, 246 Cal.App.2d 781, 786, 54 Cal.Rptr. 911, 915:

“ ‘The general authority of the attorney vest him “with complete charge and supervision of the procedure to be adopted, the conduct of the trial and all cognate subjects, provided only the attorney does not impair, compromise, or destroy his client's cause of action or subject matter of the litigation without his client's consent.”  (Witaschek v. Witaschek, 56 Cal.App.2d 277, 283, 132 P.2d 600.)’  (Fowlkes v. Ingraham, 81 Cal.App.2d 745, 746–747, 185 P.2d 379.)”  [Emphasis added.]

 The determination whether the case be tried by a court or jury and the submission for decision on the reports of the psychiatrist without presenting other testimony, are each procedural considerations in the conduct of a special proceeding governed by the rules applicable to civil trials.  (See Zurich General Accident & Liability Ins. Co., Ltd. v. Kinsler, 12 Cal.2d 98, 105, 81 P.2d 913;  Duffy v. Griffith Company, 206 Cal.App.2d 780, 24 Cal.Rptr. 161;  Nahhas v. Pacific Greyhound Lines, 192 Cal.App.2d 145, 146–147, 13 Cal.Rptr. 299.)

 Accordingly, we hold that there was no error in allowing defendant's counsel to waive defendant's rights to a jury and to present further evidence in a Penal Code, section 1368 hearing.

 Defendant's last argument is that he was denied effective aid of counsel by virtue of trial counsel's waiver of a jury and submission of the matter on the reports of the two psychiatrists.   This argument is without merit as clearly counsel's actions were the result of his judgment, not unawareness of a rule of law, (People v. Ibarra, 60 Cal.2d 460, 466, 34 Cal.Rptr. 863, 386 P.2d 487) and did not reduce the trial to a farce or sham.   (Id. at p. 464, 34 Cal.Rptr. 863, 386 P.2d 487.)   This is evident from the statement made by defendant's counsel to the court that he had informed defendant of the proposed procedure which counsel had determined to be the “appropriate procedure in this particular case” and in defendant's “best interests.”

Judgment affirmed.



1.   Penal Code, 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 by a trial by the court without a jury, or with a jury, if a trial by jury is demanded;  and, from the time of such order, all proceedings in the criminal prosecution shall be suspended until the question of the sanity of the defendant has been determined, and the trial jury in the criminal prosecution may be discharged, or retained, according to the discretion of the court until the determination of the issue of insanity.”   The test of sanity under this section is whether defendant “is able to understand the nature and purpose of the proceedings taken against him and to conduct his own defense in a rational manner.”  (People v. Beivelman, 70 A.C. 37, 48, 73 Cal.Rptr. 521, 447 P.2d 913;  People v. Merkouris, 52 Cal.2d 672, 678, 344 P.2d 1, 4;  People v. Jensen, 43 Cal.2d 572, 576, 275 P.2d 25.)

HILLIARD, Associate Justice pro tem.* FN* Assigned by the Chairman of the Judicial Council.

KERRIGAN, Acting P.J., and TAMURA, J., concur.

Copied to clipboard