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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Charles R. BURNICK, defendant and Appellant.

Cr. 21344.

Decided: August 18, 1972

Barry David Kohn, Beverly Hills, for defendant and appellant. Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., William R. Pounders and Joel S. Moskowitz, Deputy Attys. Gen., for plaintiff and respondent.

Acting under sections 6318–6321 of the Welfare and Institutions Code,1 the superior court ordered defendant committed, for an indefinite commitment, to Atascadero State Hospital as a mentally disordered sex offender. He has appealed from that order (Pen.Code, § 1237, subd. 1). For the reasons hereinafter set forth, we reverse the order.

Defendant was convicted in municipal court of three counts of violation of subdivision (a) of section 647, and of two counts of violation of section 272 of the Penal Code. His case was certified to the superior court, pursuant to sections 6302–6304. A hearing was held before a judge of the superior court, purportedly pursuant to sections 6305–6316, resulting in an order for his commitment. As appears from the record before us, that hearing was fatally defective, in that the two court-appointed psychiatrists were not personally present to testify and did not hear the testimony of any witness, as is required by section 6308.2 The record shows a purported waiver of that requirement, but a waiver participated in only by counsel. In People v. Harvath (1969) 1 Cal.App.3d 521, 82 Cal.Rptr. 48—an opinion approved as to the point herein involved by the Supreme Court—we held that section 6308 required a personal waiver by the defendant and that a hearing without such a personal waiver was fatally defective.

Pursuant to section 6318, a trial by jury thereafter was demanded. When the matter came on for hearing pursuant to that demand, jury was waived and the new hearing ultimately was held before a court commissioner sitting as a judge pro tem. That proceeding resulted in the order now before us.

At the opening of the 6318 hearing, counsel for defendant made three objections, all of which were overruled.3 The same three objections are urged on us here. They are: (1) that the stipulation to submit the matter to a judge pro tem had been executed only by counsel and not by defendant personally; (2) that the trial court erred in not applying a standard of proof beyond a reasonable doubt; and (3) that the trial court erred in not requiring both expert witnesses to be present at the same time. We conclude that the third contention is valid and requires a reversal, that the second contention is unsound, and that, since the matter must be retried, it is unnecessary to rule on the first contention.


It is clear from the record before us that, although both court-appointed psychiatrists, Doctors Davis and Tweed, were called and did testify at the 6318 hearing, they were not both present at the same time, that they did not hear each other's testimony, and that one of them did not hear the testimony of a third psychiatrist retained and called by the defense.4 As we have indicated above, not only was there no stipulation at the 6318 hearing that purported to waive application of section 6308, but the record shows express and vigorous objection by counsel to the procedure followed.

Relying on the language in section 6321 that a 6318 hearing shall ‘be had as provided by law for the trial of civil cases,’ the Attorney General argues that the requirement for mutual presence in section 6308 applies only to a section 6316 hearing and not to a de novo hearing under 6318. We disagree. It is the obvious purpose of section 6308 to insure that each psychiatrist be fully aware not only of the ultimate conclusion of his colleague, but that he hear the reasons underlying that conclusion, so that the trier of fact would have the benefit of whatever cross-examination and rebuttal counsel might utilize to reconcile or to emphasize any differences. The record before us illustrates the importance of that procedure. One psychiatrist, Dr. Davis, was called by the People and testified in favor of a finding of mental disorder; the other court-appointed psychiatrist, Dr. Tweed, was not called by the People but was called by defendant and testified in a manner generally favorable to the defense.

Furthermore, section 6308 requires that, in addition to hearing each other's testimony, the court-appointed psychiatrists must hear the testimony of ‘all’ witnesses. Again the policy is clear: witnesses may testify to facts not disclosed to the psychiatrists during their interviews or to new theories of mental illness. The trier of fact, and counsel, should have the opportunity to question the court-appointed experts as to their reactions to any such new matter. As we pointed out above, the defense called Dr. Coburn; it is clear that Dr. Davis did not hear his testimony.

We can only speculate as to the ultimate testimony and conclusions of the two court-appointed psychiatrists had the procedure of section 6308 been followed. The failure to follow that procedure was fatal to the validity of the 6318 hearing5 and requires a reversal.


In People v. Valdea (1968) 260 Cal.App.2d 895, 902–905, 67 Cal.Rptr. 583, the contention that establishment of a defendant's mental condition must be proved beyond a reasonable doubt in order to support a commitment as a mentally disordered sex offender was considered and rejected. Relying on the later decision of In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, defendant argues that Valdez is no longer controlling. We do not agree. Winship involved a juvenile court proceeding and its holding goes no further than to determine that such a proceeding, involving proof of criminal misconduct, was so closely allied to traditional criminal cases as to require the use of the came standard of proof. But the case at bench involves no issue of guilt; it involves only the determination of the appropriate treatment, for the benefit of society, of a man already convicted of crime. We find the attempted analogy invalid.


Since the case must be retried, we need not determine whether, in a case of this sort, the defendant must join in a stipulation for a judge pro tem.

The order of commitment is vacated; the case is remanded for further proceedings consistent with this opinion.


1.  Unless otherwise indicated, all statutory citations in this opinions are to the Welfare and Institutions Code.

2.  § 6308: ‘Each psychiatrist so appointed shall file with the court a separate written report of the result of his examination, together with his conclusions and recommendations and his opinion as to whether or not the person would benefit by care and treatment in a state hospital. At the hearing each psychiatrist shall hear the testimony of all witnesses, and shall testify as to the result of his examination, and to any other pertinent facts within his knowledge, unless the person upon the advice of counsel waives the presence of the psychiatrists and it is stipulated that their respective reports may be received in evidence.’

3.  Other matters were urged in the trial court but are not argued here. Only the three contentions above listed deserve consideration in this court.

4.  Dr. Davis had testified on the first day of the 6318 hearing and was excused. Dr. Coburn, called by the defense, was the first witness on the second day and Dr. Tweed the second. The record shows that Dr. Tweed was in the courtroom when Dr. Coburn was testifying, and heard his testimony. He was examined about Dr. Coburn's theories.

5.  If each court-appointed psychiatrist hears the testimony of the other and of any other witnesses at a 6316 hearing, and if no new witnesses testify at the 6318 hearing, it is arguable that the failure to follow section 6308 at the second hearing may not be fatal. Since that is not the case before us we do not determine the point; we merely indicate that our present opinion does foreclose such a holding.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.

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