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Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Klaus RIZER, Defendant and Appellant.

Cr. 17256.

Decided: August 05, 1970

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jane C. Liebman, Deputy Atty. Gen., for plaintiff and respondent.

This is an appeal from judgments of conviction from case number 83502, issuing a check without sufficient funds (Pen.Code, s 476a), and from case number 84006, assault with caustic chemicals (Pen.Code, s 244).

By information the defendant was charged in case number 83502 on November 7, 1968, with issuing a check without sufficient funds on April 27, 1967.1

On November 22, 1968, while in custody, the defendant threw laundry bleach on Don Lee Enlow's face. This incident led to a two count indictment for mayhem (Pen.Code, s 203) and assault with caustic chemicals (Pen.Code, s 244) in case number 84006.

A hearing was held pursuant to section 1368 of the Penal Code on January 20, 1969. It was determined that the defendant was then insane, criminal proceedings were suspended and he was committed to Atascadero State Hospital. When he subsequently recovered his sanity, the court ordered him returned from Atascadero for further criminal proceedings.

On July 30, 1969, the defendant withdrew his plea of not guilty in case number 83502 and entered a plea of not guilty by reason of insanity. In case number 84006, the defendant withdrew his pleas of not guilty to both counts, and entered a plea of not guilty and not guilty by reason of insanity to Count I (mayhem), and not guilty by reason of insanity to Count II (assault with caustic chemicals).

The court appointed Doctors Richard Lambert and James Wells to examine the defendant on the question of his sanity. Count I (mayhem) in case number 84006 was dismissed in the interests of justice. The defendant waived his right to jury trial. The two cases were consolidated for trial and the defendant was found guilty of both offenses, the court finding that the defendant was sane at the time of the commission of the offenses. He appeals from the judgment in each case.

On appeal the defendant contends that (1) the circumstances under which the change of plea was taken are constitutionally deficient, and (2) there was no substantial evidence to support the finding that the defendant was sane at the time of the commission of the offenses.

The defendant argues that since a plea of not guilty by reason of insanity amounts to a plea of guilty,2 the plea cannot stand unless the record indicates that the defendant expressly and specifically waived his privilege against self-incrimination, his right of confrontation of witnesses and his right to a jury trial. He relies on Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, modified 1 Cal.3d 403B.

Boykin v. Alabama was decided June 2, 1969. It holds that it cannot be ‘assumed from a silent record that a guilty plea had been voluntarily made and that the constitutional rights necessarily forfeited by such a plea had been freely and intelligently waived.’ (In re Tahl, Supra, at p. 130, 81 Cal.Rptr. at p. 582, 460 P.2d at p. 454.)

The record in the instant case discloses that the change of plea met the Pre-Boykin standards. It is more comprehensive than that which is found in People v. Emigh (1959) 174 Cal.App.2d 392, 344 P.2d 851 which was cited with approval in Tahl as an example of the Pre-Boykin requirements for accepting a guilty plea. However, since the plea was entered after the date of the Boykin decision, the plea must meet the requirements of Boykin. (In re Tahl, supra.)

The court noted in Tahl that Boykin does not establish precise guidelines, but ‘makes clear that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the * * * rights necessarily abandoned * * * and an understanding of the nature and consequences of the plea.’ (In re Tahl, Supra, at p. 130, 81 Cal.Rptr. at p. 583, 460 P.2d at p. 455.)

The record before us clearly indicates that the defendant had discussed the procedure with his attorney and that it was his wish as well as that of his attorney to change his plea. As the record reflects from the intensive questioning by the trial court, the defendant knew and understood the nature of the charges against him, knew the effect of the plea, knew that he had the right to have a jury decide the question of his guilt, knew he would be presumed innocent and knew that his guilt must be found unanimously by the jury beyond a reasonable doubt. (At the time he changed his plea the question of his sanity was scheduled to be determined by a jury.) A further indication that he knew the consequences of his plea and the difference between a plea of not guilty and a plea of not guilty by reason of insanity is the fact that the defendant changed his plea on the mayhem count from not guilty to not guilty And not guilty by reason of insanity.

In re Tahl extensively discusses Boykin v. Alabama. The court noted that there ‘are at least two plausible interpretations' of what Boykin requires before a guilty plea may be accepted. ‘First, it may be sufficient that there are statements and facts in the record from which a reasonable presumption could be drawn that a defendant has been apprised of and has voluntarily waived his rights, and has intelligently pleaded guilty.’ (In re Tahl, Supra, at pp. 130—131, 81 Cal.Rptr. at p. 583, 460 P.2d at p. 455.) We believe the record before us supports a finding that the change of plea meets the requirements of Boykin if the above test is applied.

The second interpretation, and the one adopted in Tahl, is that the privilege against self-incrimination, the right of confrontation, and right of jury trial must be specifically and expressly enumerated for the benefit of, and waived by, the accused prior to the acceptance of his plea. (In re Tahl, Supra, at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.) In adopting the second interpretation, the court noted that Boykin contains no such requirement in express terms, but that the requirement was necessary in order to provide an adequate record for subsequent review.

The defendant argues that there was no express waiver of the right of confrontation, and we so assume for the purpose of discussion. The question thus presented is whether a plea which was entered between the dates when Boykin and Tahl were decided and which satisfies the first ‘plausible’ interpretation of Boykin, but does not satisfy the more stringent requirements of the second ‘possible’ interpretation of Boykin, as Tahl requires, is invalid. For the reasons stated below, we hold that a plea of guilty or of not guilty by reason of insanity taken during that period is constitutionally sufficient if it satisfies the requirements of Boykin to the extent that the record contains sufficient statements and facts from which a reasonable presumption can be drawn that the defendant was apprised of and voluntarily waived his rights.

We do not believe the California Supreme Court was engaging in an idle act in extensively discussing this ‘plausible’ interpretation of Boykin. Tahl establishes guidelines for future guilty pleas and advises trial courts to ‘err on the side of caution’. (In re Tahl, Supra, at p. 132, 81 Cal.Rptr. at p. 584, 460 P.2d at p. 456.) We do not think that the court in adopting one interpretation over the other intended to invalidate pleas which meet the requirements of Boykin but were accepted by judges who did not foresee that even more stringent requirements would be adopted by California. To paraphrase the court in Tahl, to invalidate all such interim pleas after their acceptance would have a dolorous effect upon the administration of justice.

The requirement that the waivers be in express language is a new procedure which we believe should be given prospective application from the effective date of Tahl.3 We hold the change of plea in the case at bench is not constitutionally defective inasmuch as the record clearly indicates that the defendant was aware of his rights and the plea was not the result of ignorance of constitutional rights but of a well-considered tactical decision.

The next question presented is whether the evidence is sufficient to support the finding that the defendant was sane at the time of the commission of the offenses.

We note at the outset that the plea of not guilty by reason of insanity places upon the defendant the burden of proving insanity by a preponderance of the evidence. (People v. Daugherty (1953) 40 Cal.2d 876, 256 P.2d 911.) For purposes of this opinion it is sufficient to note that the evidence presented on the question of the defendant's sanity is in conflict. It is the function of the trier of fact to resolve conflicts and determine the credibility and weight to be given the evidence.

Doctors Wells and Lambert testified for the defendant. In their opinion the defendant as a result of mental illness was unable, at the time of committing the offenses, to distinguish right from wrong and understand the nature and consequences of his acts.

Doctor Richard Patterson testified for the prosecution that the defendant was capable of understanding his actions and could distinguish right from wrong.

Doctor Wells examined the defendant four times, three times before the defendant was committed to Atascadero and once after he was returned. Doctor Lambert examined the defendant three times. Doctor Patterson examined the defendant only once and that was before the defendant committed the second offense.

During the cross-examination of Doctor Wells, the prosecution introduced, without objection, Doctor Wells' written reports made shortly after his personal interviews with the defendant.

According to the written report filed with the court on October 16, 1968, Doctor Wells formed the opinion that the defendant was malingering, that the defendant did not appear to be suffering from any mental defect, and that while he was suffering from a personality disorder of the sociopathic type, his incommunicability was feigned. Doctor Wells' report filed on December 30, 1968, states a similar conclusion. In that report Doctor Wells states: ‘So nearly as can be determined, (the defendant) was fully in command of his faculties at the time of the commission of the original alleged offense, and there is nothing about his behavior at the present time to indicate that he is unable to understand the nature and quality of his actions at the time of the second offense.’

Doctor Wells explained the inconsistencies between his testimony at trial and the written reports by the fact that he had more information at the time of trial and was better able to communicate with the defendant after defendant returned from Atascadero.

Doctor Patterson's testimony at the trial was substantially the same as Doctor Wells' written reports.

The defendant argues that Doctor Patterson's testimony was extremely important and that the court would most likely have found in accordance with the defendant's witnesses were it not for Doctor Patterson's opinion. The defendant relies on People v. Bassett (1968) 69 Cal.2d 122, 70 Cal.Rptr. 193, 443 P.2d 777 for his argument that Doctor Patterson's testimony should have been excluded at least with respect to the events subsequent to Doctor Patterson's examination and that the balance of his testimony is not entitled to ‘substantial weight’ inasmuch as it was not based on personal observations.

The basis for an expert's opinion goes to its weight, not its admissibility. (People v. Bassett, Supra; People v. Brekke (1967) 250 Cal.App.2d 651, 58 Cal.Rptr. 854.) Bassett holds that an opinion of an expert witness not predicated upon any articulated reasons is not substantial evidence.

However, Doctor Patterson's opinion was based on his personal observation of the defendant, the testimony of the defendant, the testimony by the other doctors and the testimony from the lay witnesses concerning the defendant's conduct at the time of the offenses.

Doctor Patterson felt that the defendant was more revealing and open about his activities when he spoke in the courtroom than he was when he spoke with Doctor Wells and Doctor Lambert.

The case at bench is distinguishable from Bassett in that Doctor Patterson did have a personal interview with the defendant and had observed all of the witnesses at the trial, which the paychiatrists in Bassett did not do. One expert may base his opinion on the facts testified to by other experts as to the basis for their opinions. (People v. Lewis (1960) 186 Cal.App.2d 585, 9 Cal.Rptr. 263.) A psychiatrist who examines a defendant for one purpose may give an opinion as to other aspects of the defendant's personality. (People v. Brekke (1967) 250 Cal.App.2d 651, 58 Cal.Rptr. 854.) Therefore, we conclude that Doctor Patterson's testimony was substantial evidence that defendant was not insane when he committed the offenses.

Bassett is also distinguishable inasmuch as Doctor Patterson's testimony is not the only evidence supporting the finding that the defendant was sane. Doctor Wells' written reports, which were introduced without objection, also support the trial court's finding.4

We conclude that there is substantial evidence supporting the finding that the defendant knew the difference between right and wrong and understood the nature and consequences of his acts.

The judgments are affirmed.


1.  A prior conviction of burglary in the State of Missouri was alleged and found true.

2.  ‘A defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the offense charged.’ (Pen.Code, s 1016.)

3.  We are aware that in Tahl the court said that ‘the procedures adopted herein must be given prospective application only, i.e., to those cases in which pleas were entered subsequent to the effective date of (the Boykin) decision’. Obviously, insofar as Tahl goes beyond the requirements of Boykin (as we think it clearly does), Tahl cannot be ‘given prospective application only’ if it is applied to the case at bench when the pleas were made months before the decision in Tahl.

4.  There is no constitutional objection to using the reports as evidence for the truth of the matter asserted therein pursuant to section 1235 of the Evidence Code. (California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.)

GUSTAFSON, Associate Justice.

LILLIE, Acting P.J., and THOMPSON, J., concur.

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