Reset A A Font size: Print

Court of Appeal, Second District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Muharem KURBEGOVIC, Defendant and Respondent.

Cr. 26868.

Decided: June 22, 1976

John K. Van De Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Div., and Arnold T. Guminski, Deputy Dist. Atty., for plaintiff-appellant. Richard S. Buckley, Public Defender, Harold E. Shabo, Gerald Chaleff, and Laurance S. Smith, Deputy Public Defenders, for defendant-respondent.

This is an appeal by the People pursuant to section 904.1, subdivision (a) of the Code of Civil Procedure. The facts pertinent to this appeal are as follows: Muharem Kurbegovic, defendant, on September 25, 1974, was charged with a grand jury indictment containing 25 counts, three of which alleged murder with special circumstances.1 On October 23, 1974, a superior court judge expressed a doubt as to defendant's mental competency to stand trial and appointed psychiatrists to examine him.2 He thereafter ordered a hearing pursuant to Penal Code section 1368.3

On January 2, 1975, the cause was called for hearing. Defendant waived trial by jury. The People did not waive, and demanded a jury trial. On January 6, the 1368 hearing commenced, and evidence was presented on the issues with both sides resting on January 13. On January 16, the jury returned with the following verdict unanimously rendered: ‘We, the jury in the above-entitled action, find the Defendant MUHAREM KURBEGOVIC is mentally competent to stand trial in that he is able to understand the nature of the proceedings taken against him’ and to assist counsel in the conduct of the defense in a rational manner.'

After the jury was discharged, defendant's counsel stated: ‘I would have a motion to the Court to enter a judgment declaring the defendant mentally incompetent notwithstanding the verdict.’ Hearing on the motion was continued to January 20, 1975. Defendant's counsel thereafter, on January 17, 1975, filed a ‘Notice of motion for order for judgment notwithstanding verdict, or, in the alternative, for new trial.’ In said motion defendant's counsel stated that it was based on the ground that there was no evidence of sufficient substantiality to support the verdict of competence. The court granted the motion on January 20, stating as follows: ‘I am going to order the clerk of this court to enter a judgment of mental incompetency, pursuant to Section 1367 of the Penal Code and 1368 of the Penal Code, notwithstanding the verdict of this jury.'4 The motion for a new trial was not acted on.


The People state the issues on appeal as follows:

1. Does an appeal lie from the trial court's order of January 20, 1975?

2. Did the trial court act illegally and beyond its jurisdiction by making its order of January 20, 1975, in which it granted the motion for a so-called judgment notwithstanding the verdict?


1. For purposes of appeal it has been held that an order of commitment pursuant to section 1368 is appealable as a final judgment in a special proceeding (People v. Fields, 62 Cal.2d 538, 542, 42 Cal.Rptr. 833, 399 P.2d 369) under Code of Civil Procedure section 904.1, subdivision (a).5 (Cf. People v. Winfrey, 13 Cal.App.3d 818, 825, fn. 7, 92 Cal.Rptr. 33; 6 Witkin, Cal.Procedure (2d ed.1971) Appeal, § 55, pp. 4069–4070.) There is no merit to defendant's argument that the People were not ‘aggrieved’ within the meaning of Code of Civil Procedure section 902. The jury determined defendant was mentally competent to stand trial. Thus, the judgment notwithstanding the verdict prevented prosecution of the defendant. The People have the right to have that judgment reviewed on appeal.

2. Whether a trial judge can render a judgment notwithstanding the verdict in a 1368 hearing is an issue of first impression. People v. Loomis, 27 Cal.App.2d 236, 80 P.2d 1012, established that such a hearing is a ‘special proceeding.’ Begining on page 239, 80 P.2d on page 1014, the court in Loomis said: ‘The proceeding under section 1368 is not a criminal action, for the defendant is charged with no criminal act, nor, would he be subject to any punishment if he is found to be insane. (Citations.) Clearly it is not a civil action, for it is not prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong. (Code Civ.Proc., sec. 30.) The action here under consideration is a special proceeding . . .’

Authority for a judgment notwithstanding the verdict (n. o. v.) is found in Code of Civil Procedure section 629.6 This section authorizes a procedure similar to the common law motion for judgment non obstante veredicto. The only condition of the motion is that the jury must have reached a verdict and it must be a valid one (as in the present case). The power to grant the motion is the same as, and no broader than, the power to order a nonsuit or directed verdict, i. e., the judge cannot weigh the evidence. (4 Witkin, Cal.Procedure (2d ed.1971) Trial, § 374, p. 3168.) Rules regulating the granting of motions for judgment n. o. v. apply generally to proceedings in which issues were submitted to and determined by a jury. (49 C.J.S. Judgments § 60f, p. 174.) We see no reason why this rule should not apply to special proceedings that specifically permit a trial by jury, including a section 1368 hearing. Therefore, the court had jurisdiction in the case at bar to entertain the motion. For the reasons hereinafter stated, however, it erred in granting it.

The law that the judge must follow after a judgment n. o. v. motion is well settled in California. In Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, on page 159, 41 Cal.Rptr. 577, on page 580, 397 P.2d 161, on page 164, the court stated: ‘Such a motion may be granted, properly, only when, disregarding the conflicting evidence, and indulging in every legitimate inference in favor of the plaintiff, the result is a determination that there is no evidence of substantial nature to support the verdict. The trial court, on such motion, is not permitted to weigh the evidence, and on an appeal from the judgment entered on the granting of such a motion, the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the judgment.’

Two other California cases contain comments apropos to the case at bar. In Silva v. Market St. Ry. Co., 50 Cal.App.2d 796, on page 801, 123 P.2d 904, on page 907, the court said: ‘The case was one in which the evidence preponderated in favor of defendants; but that cannot be made the justification for a judgment non obstante. The trial judge has ample power to correct what may appear to him to be an unjustified verdict upon motion for new trial, but he cannot make a judgment non obstante serve the same purpose where there is any substantial evidence to support the verdict.’ And Takahashi v. White Truck, etc., Co., 15 Cal.App.2d 107, 59 P.2d 161, beginning on page 109, 59 P.2d on page 162, states: ‘That the one class of testimony is ordinarily not as satisfactory as the other may not be questioned, but that is only one of the many considerations which affect the weight of evidence. More important is the fact that testimony of any character must be credible, that is to say, the witness testifying must be believed by the court or jury before his testimony can be accepted as proof of any fact. Beyond the point of determining whether testimony, be it positive or negative, has substantial probative value, the court is not concerned with the weight of the evidence on either side of the case, either in ruling upon a motion for judgment notwithstanding the verdict or upon an appeal from a judgment so entered. . . . If the proof was unsatisfactory to the trial judge, his further action should have been taken on a motion for a new trial and not in ordering judgments for the defendant notwithstanding the verdicts.’

The trial judge explained his reason for granting the motion n. o. v. While the stated reasons might have supported a motion for the granting of a new trial, they were improper for granting a motion n. o. v. The comments affirm the People's contention that the trial judge reweighed the evidence and improperly granted the motion based on his own independent judgment.7

After these statements, the judge, in response to a question from the Deputy District Attorney, answered: ‘. . . I am taking this action based upon what my observations have been, the state of the evidence, Mr. Chaleff's [deputy public defender] argument, the continuing an present mental incompetence of the defendant, which I think is evident in court by his actions right now.’

The legislature specifically provided that a jury may be the trier of fact (if requested by either party) of defendant's competence and established that the defendant is presumed to be mentally competent unless it is proved by a preponderance of the evidence that he is not. (Penal Code, § 1369, subd. (f).)8 The trial judge and the jury in the present case came to opposite conclusions after considering the same evidence and viewing the conduct of defendant during the trial. The judge's comments clearly indicate he relied on his expertise and experience gained as a trial judge while presiding over numerous mental incompetency hearings. While such expertise is valuable to a judge and all concerned in many situations, it cannot be used to support a judgment n. o. v. if there is substantial evidence to support the verdict. We agree with the People that there was such evidence. Summarized, it is as follows:

In addition to the witnesses who testified (four court-appointed psychiatrists and the trial court bailiff), a great number of exhibits and various stipulations in regard thereto were introduced into evidence for consideration by the jury. These showed that defendant, after he escaped from Yugoslavia to Germany, emigrated to Canada and eventually came to the United States in 1967. He possesses a degree in engineering and is fluent in four languages. At all of his places of employment in Canada, he spoke in both English and German. After arriving in the United States, it appears that he pretended to be mute in selected situations, speaking at some locations but not at others. However,, despite his apparent muteness, he could always laugh, whistle, and make sounds. Over the years he gave various explanations as to why he was mute, and a few weeks prior to his arrest he indicated to one of his girlfriends that he was aware he was fooling people by playing mute. He was able to function very well at his various places of employment and was well-liked by most people. One co-employee described him ‘as normal a guy as could get.’

In March 1971, he was arrested for allegedly masturbating in a dance hall rest-room. He very capably represented himself and was acquitted by a jury. Afterwards, the trial judge accused defendant of ‘play acting,’ ‘pantomiming,’ and ‘taking advantage of every possible trick in the book.’

Before his arrest in the present case, the police observed him dictating a tape and, while wearing a disguise, drop the tape in a restaurant. Seconds before he was arrested, defendant verbally ordered a cup of hot chocolate. Upon being arrested he became mute.

After his arrest, he was able, with the help of an attorney, to withdraw $6,000 that he had in the bank and send it to Yugoslavia, claiming the money belonged to his mother. After this was done, he declared himself indigent. He also wrote a letter to the Free Press and to his last employer.9 From an examination of these letters it could be reasonably concluded that defendant did, in fact, understand the multiple charges against him and was appealing for aid in establishing his innocence.10

From a review of the record, there was ample evidence presented from which the jury could reasonably infer that defendant was a master of deception and was indeed faking evidence of incompetency; that he was able to understand the nature of the proceedings taken against him, and to assist counsel in the conduct of a defense and was thus mentally competent to stand trial.

The judgment notwithstanding the verdict is reversed.


1.  Several of the counts pertain to the Los Angeles airport bombing on August 2, 1974, in which three people were killed.

2.  The doctors testifying at the trial were Michael Coburn, George Abe, Franklin Drucker, and John Paul Walters.

3.  Penal Code, § 1368 provides:‘(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.‘(b) If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.‘(c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.‘If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call.‘If the defendant is declared mentally incompetent, the jury shall be discharged.’

4.  The court at the same time ordered the superintendent of Atascadero State Hospital to give it periodic reports on defendant's mental competence and pursuant to Penal Code, § 1370, ordered a new § 1368 hearing 18 months later in the event defendant had not recovered his mental competency within that period of time.We judicially notice (Evid.Code, § 452, subd. (d)), that according to a report ordered by the trial court (dated April 16, 1976), defendant's ‘psychiatric condition remains essentially as it was upon admission.’ In view of the continuing nature of the problem, nothing in this opinion should be construed to preclude the trial court from conducting such further proceedings under Penal Code section 1367 et seq. as its information concerning defendant's present competence may indicate.

5.  Code of Civ.Proc., § 904.1 provides in part: ‘An appeal may be taken from a superior court in the following cases: (a) From a judgment, except (1) an interlocutory judgment, . . .’

6.  The pertinent provision of § 629 is as follows: ‘The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.’

7.  Some of the pertinent comments are as follows:THE COURT: ‘I am no expert in this field of mental competence to stand trial, but I have had some experience in it, perhaps, as you know, I have had a year in Department 95 when I had a year's experience of evaluating mentally-ill people in a courtroom setting and evaluating their performance in court in light of psychiatric testimony. . . .‘The difficulty, as I saw this case when it went to the jury, and I have seen that before, is the inability of the psychiatrists to articulate their views in a demeanor or with a demeanor that is appealing to jurors, and I noted sometimes that the demeanor was somewhat offensive, and when that does occur, then it seems to me that the validity of the psychiatric opinion is belittled. I think I saw that in this case when the psychiatrists testified.‘One thing that I think I have learned in dealing with this is the transitory nature of mental illness . . . This is transitory. It does set in, and it will subside, and I think we have seen the classic case of that in this case, and all of the things that the defendant has done in the past were certainly relevant to the question of whether or not he is mentally competent to stand trial today, but they are not controlling.‘During the two weeks that we were in trial in this matter, I have closely watched this defendant—his demeanor, his performance here in court—and in light of the psychiatric testimony and in light of the evidence that was presented and in light of what I heard, and this defendant has got all of the classic moves and all of the classic demeanor of someone is actively now, and, I think, seriously a mentally-ill person, and as Dr. Coburn says, . . . if he is faking, he has put on, I think, an Academy Award-winning performance here in this courtroom during the time he has been here. . . .‘I believe that, during the period this defendant has been in this court, he has shown some grasp of what is going on in the courtroom. I think he has had moments of comprehension where he would tune in to a certain portion of the testimony, and then would tune out again, and when he was tuned in, I think, due to his mental illness, he was able, at one specific point or two or three during the course of the trial, to understand then what was going on, but this was to a very limited extent, and it was limited due to his demented mind. I don't think he has ever, at any time, fully comprehended the entire nature of this proceeding. He has not rationally grasped, I don't think, in any way the true significance of what he is doing here, and I think the full realities of the situation are, simply stated, that he is possibly facing the gas chamber in San Quentin. . . .‘In my opinion, this defendant is presently, and he is actively psychotic. . . .’

8.  Penal Code, § 1369, is titled ‘Trial of issue of mental competence; order of proceedings.’ Subdivision (f) reads: ‘In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that he is mentally incompetent. The verdict of the jury shall be unanimous.’

9.  Prior to the testimony of the first court-appointed psychiatrist, the psychiatrists who examined defendant had no knowledge of this letter to his employer. After viewing this letter, the psychiatrists admitted that defendant appeared, in the letter, to fully understand the charges against him, and the time sequence of his various contacts with the law, and that defendant evidenced no hallucinations, delusions, or misunderstandings of any of the charges.

10.  This is by no means all of the evidence which supports the jury's verdict.

HASTINGS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.