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

IN RE: Luther TYARS, a mentally retarded person. James CRAMER, District Attorney, San Bernardino County, Petitioner and Respondent, v. Luther TYARS, a mentally retarded person, Objector and Appellant.

Civ. 17721.

Decided: December 16, 1977

Charles E. Ward, Public Defender, and Littleton M. Gunn, Deputy Public Defender, for objector and appellant. Evelle J. Younger, Atty. Gen., and Cecilia H. Johnson, Deputy Atty. Gen., for petitioner and respondent.


On appeal from the trial court's order committing him as a mentally retarded person to the State Department of Health, the appellant urges constitutional error by the trial court's failure to honor appellant's asserted privilege against self-incrimination. The facts disclose that the mentally retarded person was called as a witness by the district attorney ostensibly under the authority of Evidence Code section 776 (examination of an adverse party-witness) and thereafter questioned by the court and the deputy district attorney. The appellant was asked no questions by his own attorney nor was any evidence presented on his behalf. The appellant was found to be mentally retarded and dangerous.

Before meeting the foregoing and other contentions raised by appellant, the applicable statutes and factual setting of the instant case must be examined. Welfare and Institutions Code section 6500-65121 govern the commitment proceedings in issue, section 6502 authorizing the petition for commitment to be brought by a parent, guardian, any district attorney or probation officer, the Youth Authority, or any person so designated by the superior court of the person's residence. By definition, mentally retarded persons are those who are so retarded from infancy or before reaching maturity that they are incapable of managing themselves and their affairs independently, with ordinary prudence, or of being taught to do so, and who require supervision, control, and care, for their own welfare or the welfare of others (s 6500). Only the mentally retarded person who constitutes a danger to himself or others can be committed to the State Department of Health, and then the commitment is of one year's duration subject to renewal by the same petition process (s 6500.1). Upon the filing of such petition, the mentally retarded person must be given notice of the hearing as must his parent or guardian if required by the court (s 6504) and counsel must be furnished unless the person has his own (s 6500.1). Section 6507 mandates the court to inquire into the condition or status of the alleged mentally retarded person and authorizes the court to invoke its subpoena power to require the attendance of physicians, a clinical psychologist and such other persons “as it deems advisable, to give evidence.” Finally, section 6509 governs placement procedures.

In this case, the Petition for Commitment, filed by the San Bernardino District Attorney, duly alleged the fact of Tyars' mental retardation and his dangerousness as to others and himself. The Public Defender was appointed by the court and the matter was set for hearing. The trial court granted appellant's request for trial by jury,2 granted thirteen peremptory challenges, granted his request that the verdict be unanimous, and granted his request that the jury be instructed that they could not find the petition true unless convinced of the truth of the allegations beyond a reasonable doubt.3

The evidence (the sufficiency of which is not challenged on appeal) established that Luther Tyars, age 19, had been a resident of Patton State Hospital since 1971. His mental age was variously estimated from 5 to 8 years with intelligence quotient readings between 36 to 62, depending on the test, which classified him as a moderate mental retard. He was originally beset by seizures, which were controlled by several medications administered daily. Luther was unable to brush his teeth, shower thoroughly, or clean himself without supervision after using the bathroom. He had repeatedly attacked other residents and staff members of the hospital, using his fists, tables, cue balls or cue sticks, causing property damage and personal injuries requiring medical attention. Both medical examiners testified that Luther was mentally retarded, would remain so for the rest of his life, and that he was dangerous.

When Luther was called as a witness, the customary oath was not administered to him (he sat wherever it was comfortable in the courtroom) but the trial judge elicited a promise from Luther that he would tell the truth. The court expressly found that Luther was incapable of understanding the oath, but that he did understand the obligation to tell the truth. Due to a speech handicap, he had difficulty in making himself understood. The trial court caused an “interpreter” to be sworn to “translate English into English.” The court's questions posed to Luther were not restated by the interpreter; moreover, according to the reporter's transcript, Luther's understandable words were not the same given by the interpreter who, on occasion, simply answered the court's questions without purporting to answer on behalf of Luther. On numerous occasions, Luther testified to his acts of violence including throwing chairs, breaking someone's head wide open, and hitting his interpreter (a technician from the hospital); he also named other assault victims and tried to swing his arms in punching motions (although he was in restraints). While the appellant's dual privilege against being called as a witness (cf. Evid.Code, s 930) and against self-incrimination (Evid.Code, s 940) was timely asserted outside the jury's presence, his competency as a witness was not objected to at any time in the trial. His objection in that regard has therefore been waived on appeal. (People v. Berry, 260 Cal.App.2d 649, 652-653, 67 Cal.Rptr. 312.)

As stated before, no evidence was presented on behalf of appellant.

The application of the privilege against self-incrimination (U.S.Const., 5th Amend.; Cal.Const., art. I, s 15) to mental retardation judicial commitment proceedings has not previously been the subject of review in California. The purpose of the privilege's protection, however, is clear: “Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” (Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659.) Appellant points not to the consequence of guilt, but to his loss of liberty, which may be the subject of annual renewal. He finds support in In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527, 558, where the court conceded the literal wording but stated: “It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person ‘shall be compelled in any criminal case to be a witness against himself.’ However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admissions and the exposure which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.” (Emphasis in original.)4 It is also the Gault decision that resolves the controversy here: “And our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom.” (Id., at p. 50, 87 S.Ct. at p. 1456, 18 L.Ed.2d at pp. 558-559.)

The state's interests in both protecting the mentally disabled person from himself and protecting society from the person5 are premised on the condition that the person to be committed is disabled and treatable and “on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty. (Fn. omitted.)” (Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394, 402.) But the individual's interests are no less fundamental than those in criminal proceedings and his liberty “is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.” (In re Gary W., 5 Cal.3d 296, 307, 96 Cal.Rptr. 1, 9, 486 P.2d 1201, 1209.)

Analogies may be drawn to other mental health statutes, although the lack of coordination, by legislation or judicial decision, has been justifiably lamented.6 Our Supreme Court in People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, applying article I, section 7(a) of the state Constitution found the full panoply of the relevant protections that due process guarantees in state criminal proceedings to include the requirement of proof beyond a reasonable doubt in mentally disordered sex offender proceedings (Welf. & Inst.Code, s 6300 et seq.). The unexplainable disparity in procedural safeguards between the foregoing MDSO proceedings and section 5000 et seq. governing dangerous mentally disordered persons (Lanterman-Petris-Short Act) was found constitutionally indefensible in People v. Feagley (1975) 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373, so that equal protection demanded the unanimity of jury verdict in both proceedings.

None of the foregoing was lost on the trial judge who, as stated, granted every constitutional safeguard requested by appellant, save this one. We hold, however, that under both the federal and state Constitutions due process of law requires the courts to honor the privilege against self-incrimination as claimed by the alleged mentally retarded person where loss of liberty is the result under Welfare and Institutions Code section 6500-6512 proceedings. It was error to compel Tyars' testimony, and the judgment must be reversed. (People v. Disbrow (1976) 16 Cal.3d 101, 115-116, 127 Cal.Rptr. 360, 545 P.2d 272.)

Because of the likelihood of retrial, appellant's remaining contentions deserve further comment. Appellant argues that the jury should have been allowed to consider the mentally retarded person's improvement by way of his daily medication if the jury found it to be likely that such medication would be provided and taken in the future, thereby diminishing the retarded person's dangerousness. Appellant's reliance on out of state cases holding medicated persons competent to stand trial (Pen.Code, §§ 1367-1375.5) is misplaced. The standard in those proceedings is “merely whether defendant is able to understand the nature and purpose of the proceedings against him and to assist counsel in conducting his defense.” (In re Franklin (1972) 7 Cal.3d 126, 141, fn. 9, 101 Cal.Rptr. 553, 562, 496 P.2d 465, 474.) The issue herein by statutory mandate (s 6507) is the “condition or status” of the alleged mentally retarded person, and the Legislature has not chosen to modify those terms by reference to the presence or absence of medication. In In re Gonzales (1971) 6 Cal.3d 346, 351, 99 Cal.Rptr. 17, 491 P.2d 809, in construing the then newly-enacted Lanterman-Petris-Short Act (§§ 5000-5401), the Supreme Court was persuaded that in making the transition to the new laws one previously committed under the former statutes was not to be automatically released “nor should he be deprived of the medication he needs to control his violence, in order to provide a basis for continued detention for his own safety and that of the public.”7 We decline to interpret the statute in the creative manner urged by appellant and concur with the trial court's instructions on the basic fact of “danger to self or others” modeled on the standard for postcertification of gravely disabled persons in section 5304.

The jurisdiction of the lower court next is disputed on the basis that Luther's parents “reside” in Los Angeles County, albeit that Luther has been hospitalized at Patton State Hospital in San Bernardino County since 1971. Section 6502 refers to the county in which the alleged mentally retarded person “resides” for the filing of the petition, while section 6509 requires only residency in the state “as determined in accordance with Section 6501” for placement of the person. Section 6501 was repealed in 1973 so no referent for residency now remains in this statutory scheme. However, when section 6509 was rewritten and section 6501 repealed, the same effective date produced Division 25 of the Health and Safety Code (Health & Saf.Code, §§ 38000-38500, see fn. 1, ante ) pertaining to developmentally disabled persons. In 1976, Health and Safety Code section 38009.2 was added which provides for judicial review which “shall be in the superior court for the county in which the state hospital is located” (cf. Health & Saf.Code, s 38450 providing for review and release by habeas corpus in the superior court for the county in which the state hospital or health facility is located).

The fact is that the term “residence” differs in its meaning depending on the context and purpose of the statute in which it is used. (Kirk v. Regents of University of California (1969) 273 Cal.App.2d 430, 434-435, 78 Cal.Rptr. 260.) The nature of the inquiry in these proceedings indicates that, perhaps annually, treating physicians and other witnesses must be produced to testify on the present mental condition and dangerousness of the alleged mentally retarded person. If the person sought to be committed is also to be present, all these individuals must be transported to the county of origin under appellant's theory of “residence,” at least, according to appellant, where the minor child was incapacitated before emancipation and hence residence is to be determined by the person's parents' place of residence. (See Mauro v. Dept. of Mental Hygiene (1962) 207 Cal.App.2d 381, 24 Cal.Rptr. 505.) By current definition, however, one cannot be either “mentally retarded” or “developmentally disabled” unless the incapacity arose before reaching age 18 (“before reaching maturity,” s 6500; “before an individual attains age 18,” Health & Saf.Code, s 38010). Since section 6502 looks to where the person to be committed resides and notice of the proceedings can be required to be given to parents or guardians, any conclusion on the facts of this case other than one of finding jurisdiction in the trial court would be illogical and untenable.8

Lastly, appellant claims that after the jury returned its verdict, the trial court was obliged to conduct a hearing as to placement of Luther in the least restrictive residential program. He argues that since the Legislature equated a commitment to the State Department of Health for “suitable care and treatment” with the “least restrictive residential placement” in Health and Safety Code section 38009.2, then a commitment in a state hospital pursuant to section 6502 must likewise require a similar placement consideration. The only differences between the two sets of statutes are (1) the fact of the committed person's dangerousness in section 6500.1 and (2) the reference to “hospitalization” in section 6509 instead of suitable care and treatment. Given the wide discretion vested in the Legislature to make statutory classifications and the presumption in favor of their validity (Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719, 738, 100 Cal.Rptr. 301, 493 P.2d 1165), can it be said that no rational basis for the distinction between the developmentally disabled and the mentally retarded placements exists and that appellant was therefore denied equal protection of the law when no hearing on appellant's placement was conducted? It should be noted that the Health and Safety Code section guarantees no hearing on the issue of the placement itself but simply defines care and treatment to include placement short of hospitalization. Assuming, however, that such a hearing is thereby granted, we are satisfied that the Legislature has reasonable deemed those in appellant's position to constitute a special or exceptional class and, “under such circumstances, a rational basis exists for the difference in the treatment accorded such persons.” (In re Franklin, supra, 7 Cal.3d at pp. 143-144, 101 Cal.Rptr. at pp. 564, 496 P.2d at pp. 476.) Therefore, no hearing as to placement of appellant was required and hospitalization by way of commitment to the State Department of Health was proper.

For the reasons hereinbefore expressed, the judgment is reversed.

I respectfully dissent.

The majority has held that the due process provisions of both the federal and state Constitutions require “the courts to honor the privilege against self-incrimination as claimed by the alleged mentally retarded person where loss of liberty is the result under Welfare and Institutions Code sections 6500-6512 proceedings.”

The privilege against self-incrimination claimed by appellant was the privilege not to be called as a witness.

This is clear from the nature of the pretrial motion, which was that “this trial of an alleged dangerously mentally retarded person should be treated in all respects as a criminal trial with the same substantive and procedural elements.” Furthermore, it was apparent throughout the proceedings in the trial court and in appellant's argument on appeal that the disclosure appellant seeks to avoid is the disclosure of his mental condition.

I had thought that case law had established rather clear rules controlling the scope of the privilege provided by the federal and state constitutional provisions that no person “shall be compelled in any criminal case to be a witness against himself.” (U.S.Const., Amend. V; Cal.Const., art. I, § 15.)

In California these rules have been recognized by statutory declarations.

To the extent that such privilege exists under the federal and state Constitutions, a defendant in a criminal case has a privilege not to be called as a witness and not to testify (Evid.Code, § 930) and every person has the privilege to refuse to disclose any matter that may tend to incriminate such person (Evid.Code, § 940). These rights are exceptions to the general rule that no person has a privilege to refuse to be a witness and to disclose any matter material to the issues in any judicial proceeding. (Evid.Code, s 911.)

It has been well established that the privilege not to be called as a witness may be asserted only by a defendant in a criminal proceeding. (Black v. State Bar (1972) 7 Cal.3d 676, 685, 103 Cal.Rptr. 288, 499 P.2d 968; In re Vaughan (1922) 189 Cal. 491, 495-497, 209 P. 353; People v. Whelchel (1967) 255 Cal.App.2d 455, 460, 63 Cal.Rptr. 258.) On the other hand, the privilege not to disclose any incriminating matter may be asserted by any person either in a civil or criminal proceeding. “ ‘The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory . . . it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.’ ” (In re Gault (1967) 387 U.S. 1, 47-48, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527, 557 quoting from conc. opn. by Justice White in Murphy v. Waterfront Commission (1964) 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678, 704; Malloy v. Hogan (1964) 378 U.S. 1, 11-14, 84 S.Ct. 1489, 1495-1497, 12 L.Ed.2d 653, 661-663.)

Finally, the privilege, which is available in any proceeding, guards against the compulsory disclosure of facts tending to establish criminal liability. (Black v. State Bar, supra, 7 Cal.3d at p. 685, 103 Cal.Rptr. 288, 499 P.2d 968; see also In re Gault, supra, 387 U.S. 1 47-48, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527, 557.

Appellant was called as a witness in a civil commitment proceeding under Welfare and Institutions Code sections 6500-6512. Although no mentally retarded person may now be committed unless such person is a danger to himself or others (Welf. & Inst.Code, § 6500.1), such dangerousness does not necessarily involve criminal conduct, and thus the proceeding does not inevitably require testimony concerning criminal conduct.

Counsel for appellant made no objection to any specific question or any line of questioning on the ground that the answers would tend to establish criminal liability. The right claimed by appellant's counsel and allowed by the majority is an asserted right of a person whose mental state is at issue in a civil commitment proceeding not to be called as a witness; a right to refuse to answer any question because to do so might reveal the mental state that is the subject of inquiry and thus lead to commitment for the care and treatment of that condition.

The decision of the United States Supreme Court in In re Gault, supra, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, does not, as the majority holds, compel the result reached herein. The impassioned language quoted must be considered in context. Gault dealt with a juvenile who was charged under the Arizona Juvenile Code with being a “delinquent” and who was committed to the state industrial school as a juvenile delinquent.

The court recognized that the “delinquent act” involved a violation of the criminal code and that a commitment from juvenile court was imposed as “punishment.” (Id., at pp. 51-52, 87 S.Ct. at p. 1456.) Clearly, under such circumstances, the distinction between “criminal” and “civil” would be, as the court stated, “to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience which has been attached to juvenile proceedings.” (Id., at p. 50, 87 S.Ct. at p. 1455.)

Furthermore, the court was obviously haunted by the likelihood of juveniles being housed in adult penal institutions in some states. The court stated, in the text immediately preceding the passage quoted by the majority herein, as follows: “Indeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult ‘criminals.’ In those States juveniles may be placed in or transferred to adult penal institutions after having been found ‘delinquent’ by a juvenile court.” (Id., at p. 50, 87 S.Ct. at p. 1455, fn. omitted.) And immediately following the portion quoted by the majority the court stated: “In addition, apart from the equivalence for this purpose of exposure to commitment as a juvenile delinquent and exposure to imprisonment as an adult offender, the fact of the matter is that there is little or no assurance in Arizona, as in most if not all of the States, that a juvenile apprehended and interrogated by the police or even by the Juvenile Court itself will remain outside of the reach of adult courts as a consequence of the offense for which he has been taken into custody. In Arizona, as in other States, provision is made for Juvenile Courts to relinquish or waive jurisdiction to the ordinary criminal courts.” (Id., at pp. 50-51, 87 S.Ct. at pp. 1456.)

That the distinction between juvenile and adult courts is in many respects ephemeral, was recognized in California long before Gault. (See In re Tahbel (1920) 46 Cal.App. 755, 189 P. 804, wherein the court recognized a juvenile's privilege against self-incrimination in a juvenile court proceeding, expressing some of the same concerns expressed by the Supreme Court in Gault.)

Unlike the juvenile commitment, a commitment of a mentally retarded person under Welfare and Institutions Code sections 6500-6512 is not a punishment, and the proceedings are not analogous to a criminal proceeding. The purpose of the proceeding pursuant to section 6500 et seq. is to determine the person's mental condition so that he may be given appropriate care and treatment. Welfare and Institutions Code section 6250, which applies to persons subject to civil judicial commitment, including mentally retarded persons under section 6500, reads in part as follows: “This part shall be liberally construed so that, as far as possible, and consistent with the rights of persons subject to commitment, such persons shall be treated, not as criminals, but as sick persons.”

The proper scope of appellant's privilege against self-incrimination in the instant proceeding is that described by the court in People v. Whelchel, supra, 255 Cal.App.2d 455, 63 Cal.Rptr. 258, where appellants were called to testify in a proceeding for their commitment under Welfare and Institutions Code section 3050 as persons in imminent danger of becoming narcotic addicts. After distinguishing Gault and other cases involving confinement for punishment, the court concluded that, since confinement of the narcotic addict under the rehabilitation program is a part of the treatment for his addiction, is necessitated by illness and is not imposed because of a criminal offense, such person “may be called as a witness and compelled to testify in the course of such proceeding, providing, however, he may refuse to disclose any matter that may tend to incriminate him in the commission of a punishable crime.” (Id., at p. 461, 63 Cal.Rptr. at p. 263.)

The commitment of mentally retarded persons is even more distinctly civil in nature than the commitment of narcotic addicts. It is not triggered by or related to the commission of a criminal offense; the commitment expires at the end of one year and any new petition is subject to the same procedures as an original commitment (Welf. & Inst.Code, § 6500.1); and the petition need not be filed by a prosecutor, but may be filed by a parent or other person designated by the court. (Welf. & Inst.Code, § 6502.)

Nor do I believe that In re Gary W. (1971) 5 Cal.3d 296, 96 Cal.Rptr. 1, 486 P.2d 1201, compels the result reached herein. In that case, the California Supreme Court concluded that “in the absence of a compelling state purpose for the distinction between the class of persons subject to commitment pursuant to (Welfare and Institutions Code) section 1800 and to other classes of persons subject to involuntary confinement, the right to jury trial is a requirement of both due process of law and equal protection of the law.” (Id., at p. 307, 96 Cal.Rptr. at p. 9, 486 P.2d at p. 1209.)

In the instant case there is a compelling state purpose for the distinction between the class of persons subject to commitment pursuant to Welfare and Institutions Code section 6500 et seq. and to other classes of persons to whom the “privilege not to be called as a witness” has been extended.

The state interest, as expressed by the Legislature, is the custodial care and treatment of those categories of “sick” persons who cannot for their own safety and the safety of others be left at large. (Welf. & Inst.Code, §§ 6250-6254, 6500-6500.1.)

The Legislature has recognized the unpleasant fact that there are people, who by reason of mental retardation, mental illness, and drug addiction, simply cannot cope in the open community people, who by reason of such conditions are a danger to themselves and others if they are left to confront the complexities of living in the community. For their protection and for the protection of others, it is necessary in a humane society to provide for their care and treatment in an institutional setting.

In the case of those who are mentally retarded and dangerous, the Legislature has provided that “[t]he court shall inquire into the condition or status of the alleged mentally retarded person.” (Welf. & Inst.Code, § 6507.)

In the fact finding process it is essential that the alleged mentally retarded person's fundamental rights be protected. As the majority observed, in the instant case the trial court granted every constitutional safeguard requested by the appellant, save the newly created right not to reveal his mental condition to the tribunal entrusted with the duty of inquiring into that condition.

The extension to this proceeding of the right not to be called as a witness will subvert the fact finding process. Welfare and Institutions Code section 6507 provides that in its inquiry the court may subpoena experts to testify concerning the person's mentality. It does not restrict the court to such testimony. The true purpose of the testimony of the alleged mentally retarded person is to permit the jury (or court, if jury is waived) to view firsthand his verbal and nonverbal demeanor in order to evaluate the credibility of the expert and other evidence submitted, and to make its independent determination as to the mental condition and dangerousness of the person. The Legislature has recognized that the best safeguard against non-dangerous mentally retarded persons being railroaded by relatives, or others to whom their mental condition has become an embarrassment or inconvenience, is to have that condition examined in a judicial proceeding. Obviously, the fact finder can better perform this safeguard function if it can consider the most reliable evidence of the mentally retarded person's condition, i. e., his behavior, both verbal and nonverbal, without being restricted to second hand accounts of his behavior and to sometimes vague and equivocal testimony of experts.

The trier of fact generally is not concerned with the truth or falsity of the witness' responses but rather with what those responses reveal about the condition. Thus, the testimony is in effect a kind of physical evidence. Even a defendant in a criminal case may be compelled to appear in court, to speak for purpose of identification, to stand, to walk, to make a particular gesture or to wear particular clothing. (See People v. Sims (1976) 64 Cal.App.3d 544, 552, 134 Cal.Rptr. 566 and cases cited therein.)

The testimony of a person whose mental condition is at issue in a civil commitment proceeding is essential to the integrity of that proceeding. I am persuaded that the effect of today's decision is to deprive such persons of the right to have their condition determined by a fully informed impartial jury.



1.  Unless otherwise specified, all statutory references in this opinion are to the Welfare and Institutions Code. Health and Safety Code sections 38000-38500 govern the developmentally disabled, which includes mentally retarded persons, who are not dangerous.

2.  We construed section 6500 et seq. to so provide in O'Brien v. Superior Court (1976) 61 Cal.App.3d 62, 132 Cal.Rptr. 13.

3.  The burden of proof issue in analogous proceedings (conservatorships) is before the Supreme Court: Conservatorship of Roulet, 64 Cal.App.3d 719, 134 Cal.Rptr. 722, hearing granted February 3, 1977; Conservatorship of Johnson, 66 Cal.App.3d 87, 135 Cal.Rptr. 740, opinion modified at 66 Cal.App.3d 1023c, hearing granted March 17, 1977. See also, Conservatorship of Turner, 66 Cal.App.3d 391, 136 Cal.Rptr. 64, rehearing granted February 8, 1977.

4.  See also Murphy v. Waterfront Commission of New York, Justice White concurring, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678, 704: “The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory (citations omitted), and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used. (Citations omitted.)”

5.  As either parens patriae or regulator by use of police power, the state confines its mentally troubled citizens. See Developments in the Law Civil Commitment of the Mentally Ill (1974) 87 Harv.L.Rev. 1190.

6.  “Little has been done, legislatively or judicially, in a comprehensive fashion to examine the parameters, interrelationships and constitutional bases of the various laws dealing with mental illness. This loosely organized field encompasses such diverse areas as sexual psychopath laws, the criminal insanity defense, civil commitment voluntary and involuntary, incompetency to stand trial and the civil commitment which may result, and mental retardation.” (In re Ballay (1973) 157 U.S.App.D.C. 59, 65-66, 482 F.2d 648, 654-655, fn. 29.)

7.  In Gonzales, at pp. 350-351, footnotes 9 and 10, 99 Cal.Rptr. at pp. 20, 491 P.2d at pp. 812, the predicament posed by appellant's argument was mentioned: “Dr. Owre also pointed up to the court the dilemma faced in determining whether on the one hand to keep petitioner on medication in the hospital and so control his violent behavior, thereby preventing him from performing the overt act that would provide a basis for detention under the 90-day postcertification procedure of section 5300 et. seq. (see fn. 5, ante ) with the consequent risk that he would be released and again wreak harm upon a member of the public; or, on the other hand, to take petitioner off medication while still in the hospital, with the probability that he would revert to violent behavior toward the hospital staff and other patients but would at the same time by his violence provide the basis for the 90-day postcertification procedure.” The court also noted a staff report on the effect of medication: “Simply because he has made a good hospital adjustment and because he has been medicated so that blatantly psychotic symptoms are not in evidence, does not negate the basic fact that he is dangerous.”

8.  Cf. In re Teeter, 73 Cal.App.3d 932, 141 Cal.Rptr. 103.

STOTLER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

GARDNER, P. J., concurs.