PEOPLE v. JONES

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent JONES, Defendant and Appellant.

Cr. 38551.

Decided: June 18, 1981

Mary J. Madsen, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Robert R. Anderson, John R. Gorey, Deputy Attys. Gen., for plaintiff and respondent.

On an early April morning in 1979, Vincent Jones, commandeered a Southern California Rapid Transit District bus by walking up to the driver and saying “I'm going to have to take your bus.   Now you can either get off peacefully or I will kill you.”   Defendant and the driver were the only ones on the bus.   The driver stopped the bus and got off peacefully.

Defendant, while still driving the bus, was apprehended by police about two miles from where the driver got off.   There were no other persons on the bus.   Defendant told the officers the bus belonged to a friend of his.

In a trial by the court, defendant was first found guilty of robbery and a violation of Vehicle Code section 10851, and then not guilty by reason of insanity.   It not appearing that defendant had recovered from his insanity, the trial court ordered an examination by the County Mental Health Department and a recommendation from that official as to the appropriate disposition.   Defendant was committed to the Department of Mental Health pursuant to Penal Code section 1026.

 The evidence was sufficient to support the conviction for robbery.   Defendant's only contention in this regard is that the bus driver wasn't really afraid of defendant and since defendant used no force, the “force or fear” element of robbery was missing.

It is true that the victim testified at various times that he did not frighten easily, that he was not afraid, that he had been threatened before and had not been afraid and that, after the fact, he became concerned as to what might have happened.

At one point, however, the victim testified that after defendant threatened him “I thought I get right off that would be the end of the threat” and “If I hadn't taken it [the threat] seriously, I wouldn't have got off.”

In spite of the victim's apparent bravado, it seems apparent that he surrendered the bus only because defendant threatened his life.   The average bus driver doesn't surrender his vehicle to a passenger who is a total stranger because of a simple request that he do so.  (Compare People v. Renteria, 61 Cal.2d 497, 39 Cal.Rptr. 213, 393 P.2d 413.)   The victim's expressed lack of fear was based on his belief that no harm would befall him so long as he complied with defendant's demands.

Defendant contends that the finding that he had not recovered his sanity was not supported by the evidence.   He argues that there was no evidence that he posed a threat to the safety of others.

Those proceedings took place in May of 1980.   Apparently no steps have been taken by defendant or anyone else to obtain defendant's release pursuant to Penal Code section 1026.2 1 on the basis that his sanity has been restored, even though there was ample opportunity to do so.

Penal Code section 1237 permits an appeal by a defendant from a “commitment ․ for insanity.”   By equating such a commitment with a final judgment of conviction, that provision permits a defendant to raise certain claims of error attendant to a finding of not guilty by reason of insanity.   (Compare People v. Vanley, 41 Cal.App.3d 846, 116 Cal.Rptr. 446.)   An appeal from such commitment, however, is a particularly ineffective and inappropriate method for determining the issue of whether the defendant has regained his sanity.

By the time an appeal can be perfected, as is the case here, the 90-day period prescribed in Penal Code section 1026.2 will have expired thus permitting defendant to apply for release on the grounds that he has recovered his sanity.   Review by writ of habeas corpus of an adverse ruling on such application could also normally be accomplished well before the determination of an appeal from the judgment.

Further, while Penal Code section 1026.2 places the burden on defendant to establish that he has regained his sanity, a successful attack on the trial court's initial commitment or determination that he has not regained his sanity appears to be a virtual, if not actual, impossibility.

Penal Code section 1026 provides in pertinent part:

“․ If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined ․ or the court may order the defendant placed on outpatient status․”  (Emphasis added.)

 Thus a trial court is mandated to confine the defendant unless it appears to that court that the defendant has fully recovered his sanity.   Since defendant has been found to have committed a criminal act, yet excused because of insanity, there is a presumption that the insanity continues and the burden devolves immediately upon the defendant to establish that he has recovered.  (In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465.)   Nothing in the statute requires the trial court to determine at that point that the defendant's condition constitutes a “threat to the safety of others,” as a prerequisite to a commitment for further observation.   In fact the statute does not require that the trial court make any negative finding that the defendant has not fully recovered his sanity.   The only affirmative finding envisioned by the statute is one that the defendant has fully recovered his sanity.

The Legislature has determined that a 90 day period of observation is a reasonable prerequisite to considering the defendant's application for release and that provision has survived constitutional attack.  (In re Franklin, supra;  People v. Vanley, supra.)

 In light of the presumption of continuing insanity, the fact finding power of the trial court, the inconclusive nature of expert testimony and the thrust of the statutory scheme, we see no possible basis upon which the initial failure of the trial court to find that the sanity of the defendant has been fully restored can ever be successfully attacked, either by way of a writ or appeal pursuant to Penal Code section 1237.

 In short, we conclude that the trial court's initial act of committing a defendant found not guilty by reason of insanity is not reviewable.   The issue of whether defendant has regained his sanity must be determined in a proceeding authorized by Penal Code section 1026.2.

We have examined defendant's other contentions and find them to be lacking in merit.   No further discussion of them is warranted.

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 1026.2 provides in part:“An application for the release of a person who has been committed to a state hospital or other treatment facility, as provided in Section 1026, upon the ground that sanity has been restored, may be made to the superior court of the county from which the commitment was made, either by such person, or by the medical director of the state hospital or other treatment facility to which the person is committed or by the county mental health director where the person is on outpatient status under Title 15 (commencing with Section 1600) of Part 2․  No hearing upon such application shall be allowed until the person committed shall have been confined or placed on outpatient status or on parole under Section 1611 for a period of not less than 90 days from the date of the order of commitment.   If the finding of the court is adverse to releasing such person on the ground that sanity has not been restored, no application shall be filed by the person until one year has elapsed from the date of hearing upon the last preceding application.   In any hearing authorized by this section, the burden of proving that sanity has been restored shall be upon the applicant․”

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.