PEOPLE v. BAKER (1989)

Jeffery Allen Baker appeals a judgment convicting him of murder after a jury rejected his plea of not guilty by reason of insanity.  (Pen.Code,2 § 187.)   He asserts his constitutional privilege against self-incrimination and right to counsel were violated when the People introduced psychiatric testimony at his not guilty by reason of insanity (NGI) trial based on his statements made during an earlier section 1369 competency examination.   We hold no constitutional right is impinged when statements from a section 1369 examination are used at the sanity, as opposed to the guilt, phase of a criminal trial.

Baker also asserts the court erred by giving a cautionary instruction pertaining to a defendant's preoffense statements based on CALJIC No. 2.71.7;  and in admitting evidence he threatened a psychiatrist testifying in favor of the prosecution, his confession, and photographs of the victim's wounds and blood stains.   We hold the court did not err in admitting his confession, and any cumulative error in giving the cautionary instruction and in admitting the purported threat and photographs is harmless.   The judgment is affirmed.

FACTS

Baker pled not guilty and not guilty by reason of insanity to murdering Lorenzo Fort, his co-resident at a psychiatric board and care facility.   After a section 1368 hearing showed Baker was competent to stand trial, he entered a plea of nolo contendere.

At the sanity trial, the following evidence was presented.

Baker's confession

After waiving his Miranda rights, Baker made a rambling disjointed confession.   He stated his mother was back East and he had no idea where “this guy” that raised him was, and this black guy at the board and care had “been messing” with a white girl named Phyllis at night and the girl told him he should do something about it.   He went to the bank that day and withdrew money with which he purchased a weapon.   He waited until after dinner, went to Fort's room to ask him if he wanted a cigarette, returned to his room, lay down, and then put the knife on and went back to Fort's room where Fort was lying in bed and started stabbing him.

When asked to tell more about Phyllis and what she had told him to do, Baker stated they had moved her to another room down the hall, but Fort would go there and bug her and Baker would hear him.   When asked what Phyllis said to him, Baker responded she did not say anything to him.   When asked again if she ever talked to him about Fort going to her room, Baker answered no, but there was a blanket on her bed and the door was wide open.   Baker asked the police to repeat the question, and when asked if Phyllis said anything about helping her to stop Fort from bothering her, Baker answered no, there was nothing like that.

When asked to describe his activities of the day, Baker stated after he went to K–Mart and bought the weapon, he was going to go to Sylvia's work because her boss had been “messing with her,” but then decided to forget it.   After dinner, Baker told a man named Jessie to knock on his door and give him a signal and he would go in there.   When Baker was lying down, Jessie came and knocked on his door, and Baker went to Fort's room and started stabbing him.

Baker found Fort lying on the bed, and stabbed him on the left side of the stomach.   When Fort jumped up and started swinging and kicking, Baker stabbed him again.   When asked why he did all this, Baker said he opened up the front door and on the van the hood was open and the battery was lying on the concrete.   When asked why he chose Fort rather than someone else, Baker responded Fort does whatever he wants to do, coming into Baker's room at night, hitting him on the head, knocking on the door outside late at night, bugging him, and threatening him when Baker takes Fort places in his car.   Baker had told Fort one day he was going to get stabbed, about six weeks ago, after Fort had told him to keep his mouth shut.

After dinner, he put the knife on and thought about whether he had “the balls” to go in there and stab Fort.   He knew he had to do it because Fort was getting away with all kinds of “crazy stuff,” threatening him all the time, asking for cigarettes from him, walking in and out of the room any time he wanted, just doing what he pleased, calling him “boy” all the time, and one time when Sylvia called him, Fort answered the phone and told Baker it was his mother.

In another version, Baker stated he had gone to dinner with Sylvia and found a little sword on the table.   He put it in his pocket.   He later put the sword in his dresser drawer.   He took the little sword, which he described as three inches in size and made of plastic, because it was some kind of sign.   When asked what the sword had to do with what happened that day, Baker answered somebody just got tired of something;  he did not know who put it there but he picked it up.   When asked again what that had to do with what happened that day, Baker responded it's the way it's always been;  different things happen to him;  things come on the TV screen;  he got some kind of disease from some stuff someone planted in the refrigerator and he ate it.

When asked what he wanted to do when he went to Fort's room, Baker answered “stab him”;  when asked how bad did he want to stab him, he answered “enough to drop him dead.”   When asked if he knew the consequences of something like that, he answered “prison” and acknowledged he realized it was wrong to do that.   When asked why he had made the first visit to Fort's room (to ask if Fort wanted a cigarette) that evening, he said “just to mess with his head.”

Lay witnesses

Baker's mother described Baker's history of paranoia, withdrawal, and hostility, and a fear the Russians, the military, or other people were after him.   His mental illness manifested itself by such acts as hiding from the Russians behind a bench at a mall;  running into the house petrified because he believed hot-air balloons in the sky were invading Russians;  accusing his mother of poisoning him;  leaving the waiting room of the mental hospital where his father had dropped him off and stowing away on a plane to San Jose when he hallucinated the Russians were dropping bombs;  and swerving his car as if to run into his mother and then accusing her of being a Russian.   He was discharged from the Navy for a mental and personality disorder, and had been hospitalized in a mental hospital on several occasions.

From about January through June 1986 when Baker had been living at the board and care facility, his family thought he was improving and doing well.   Beginning in August 1986, the month before the stabbing, he became increasingly withdrawn and nervous, and his mother suspected he was not taking his medication.

Baker's friend Sylvia saw him the Wednesday and Thursday before the homicide on Friday.   On Wednesday, he was not the person she knew, was nervous and shaky, would look down not up, was not clean, was acting like he was hearing things, was laughing for no reason, and was pounding his foot continuously.   When she asked him if he was taking his medication, he told her it was none of her business, and then later told her he did not need it.   He talked about things that did not make any sense;  for example about how the Russians wanted to take over San Diego because they liked the sun and they would get rid of everyone.   On Thursday, he told her he wanted to enlist in the Marines to protect San Diego from the Russians;  told her about a man who lived near his parents' house who he knew was a Russian because he had a wooden ship on his mantle and Baker had tried to get rid of him by setting fire to a bush by his house;  and told her he was working for the CIA and FBI.   Sylvia took him to the Veterans Administration Hospital where he was seen briefly and medication prescribed, and Baker told her he would take the medication at the board and care home.   Late Thursday afternoon they went to a restaurant, where Baker was laughing for no reason, was moving his head back and forth, was nervous and shaky, and was getting food all over himself.   She gave him a napkin to wipe his face, and the sandwiches they ate were held together by little plastic swords.   On Friday morning, Baker called her at work, and when she asked him, he told her he had not taken his medication.

Sylvia testified in her opinion he knew right from wrong on Wednesday, but not any longer on Thursday, when she did not “think he was there.”

Baker had told his roommate at the facility, Roger, about a week or two before the stabbing that he was not taking his medication.   In the days before the incident Roger observed Baker pacing a lot or sitting and staring.   When Roger asked him what he was staring at, Baker just kind of giggled.   The afternoon of the stabbing, Roger had seen Baker wearing the knife on a sheath and Baker told Roger he bought it for protection.   After the stabbing when Baker was being held in the hallway, Roger asked Baker why he did it and Baker said “he had orders.”

At the time of the stabbing, Jessie, another resident of the home, saw the injured Fort staggering down the hall with Baker following.   Jessie stopped Baker and asked him what had happened;  Baker said he had nothing to say and then said he was “on a mission.”

Roger and Jessie described Fort as verbally aggressive and belligerent when he did not get what he wanted, doing such things as waking people at 4 a.m. to ask for a cigarette, and they had observed him make sexual advances towards Phyllis against her wishes.   The only conflict Roger had seen between Baker and Fort was a small argument over cigarettes in July 1986.   Jessie stated Baker and Fort went to a lot of places together, and were friends, but on one occasion in the summer of 1986 they had a loud argument which would have ended in a fight if it had not been stopped.

Expert witnesses

Based on interviews with Baker, and a review of his history and the taped confession, the defense and prosecution experts agreed Baker suffered from paranoid schizophrenia, but presented opposite conclusions as to his legal sanity at the time of the crime.

Defense

The defense experts described paranoid schizophrenia as a progressive illness with episodes of partial remission.   During partial remission, the symptoms do not cause much distress.   At other times, schizophrenics are “floridly psychotic,” when they are very distressed and the symptoms are usually obvious to other people.   They become delusional and cannot follow a train of thought, usually their personality and appearance goes downhill, and they withdraw from others into an autistic-type state.

Paranoid schizophrenics tend to not admit that they have a problem interpreting reality;  they would rather present themselves as either pretending to be crazy or as guilty.   They are afraid of being scrutinized and of losing autonomy, and they usually try to hide their delusions, which only gradually slip out when they say something odd as you talk to them more and they trust you more.

Dr. Meredith Friedman concluded Baker was floridly psychotic and delusional at the time of the crime.   He told her he had stopped taking his medication, and he revealed his belief the victim was involved with the Russians and was calling the Pentagon on a daily basis using false names.   Baker stated he needed to do something to help the American government;  otherwise the government would have killed him for past offenses he had purportedly committed.   He also spoke about the things he did not like about the victim, such as the victim driving his car, taking his money, etc.   Further, he believed the victim had raped the administrator and Baker needed to protect the administrator as well as Phyllis from Fort's advances.   Dr. Friedman viewed all these delusional matters as becoming jumbled together, including his feelings of animosity towards Fort, Baker's feelings of guilt and the need to do something about it, and ultimately he was unsure of what he was doing other than that he had to save people.

According to Dr. Friedman, his taped confession showed exactly what she would predict a paranoid schizophrenic would do—i.e. he was trying to present a rational account of what he did and trying to make it sound like it was a matter of free will and that he was not really sick and he really just wanted to stab the man;  but he repeatedly slipped by making little remarks indicating he was attempting to cover up his underlying delusional system.   For example, his reference to the little sword and the battery laying on the concrete had meaning to him at that point, and these delusional matters kept intruding into his attempt to give a rational account.

Dr. Friedman acknowledged not all paranoid schizophrenics are legally insane.   In her view the line was crossed into legal insanity when the person believes they have to do something to protect themselves or other people, and they view themselves as in imminent danger and in a life-and-death situation.

Dr. Friedman did not believe Baker's statements to the police established he knew what he was doing when he killed Fort.   She pointed out the characteristic of a paranoid schizophrenic who would rather appear guilty and in control than have others know they are mentally ill, Baker's deteriorating condition in the days before the offense, and his past history of behaving in a very delusional manner and believing he was in danger from the Russians.   She explained because a person is schizophrenic does not mean they are not thinking rationally every minute;  rather the person has “islands of rational thinking that are interspersed with the delusional material.”   Baker's statements to the police occurred in the context of one pulling one's self together after the fact and trying to look guilty rather than insane.   He did not show his delusional state to the police, other than the items that slipped out that he could not control, probably because he did not trust the police.   A rational person would not have had the other delusional matters slipping out.

Dr. Mark Kalish opined that at the time Baker committed the offense, he was operating under the delusional belief system that the victim had been threatening another resident in the facility, and believed she was in imminent danger of further harm;  also he believed he was being compelled to provide protection to this woman by the Marine Corps and he acted to protect this woman by stabbing the victim;  accordingly he was unable to distinguish right from wrong.

Dr. Haig Koshkarian described Baker as having delusional thinking centered on such things as being attacked by the Russians and his having to come to the defense of people or his country.   At the time of the crime, he had some real annoyance with the victim, but his annoyance grew and began taking on larger implications until it became part of his delusional system and he saw the victim as part of a larger struggle with the Russians and someone that had to be killed to protect the American people.   When talking to the police, Baker centered on his anger toward the victim probably because he had a long history of denying his illness so that he had a tendency to make his behavior seem more reasonable than it actually was.   Although Baker knew in a general way it was wrong to kill human beings, he did not think it was wrong to kill that human being at the time he did it.

The defense experts concluded Baker knew he was stabbing someone and that it would probably kill him, but he did not believe it was wrong based on his delusional thinking that he was acting to protect people.

Prosecution

Testifying for the prosecution, Dr. Gregg Michel described paranoid schizophrenia as a thought disorder whereby the person has psychotic symptoms, losing contact with reality and becoming confused, and may have hallucinations.   At times the person may function quite well;  at other times they may decompensate.   Based on his examination of Baker during the earlier section 1369 competency proceedings, Dr. Michel stated he believed Baker was legally sane when he killed Fort because he was showing no symptoms of decompensating at the time of the act, was oriented to person, place and time, and was in excellent immediate reality contact.   He selected the weapon, planned out what he wanted to do, was very cognizant of events, was extremely accurate with what he told the police, and several hours later told the police he realized the act was wrong.   He had a clear and consistent motive—i.e., he was jealous, afraid, and angry with the victim.   He was waiting for the police and knew he would be arrested.

Dr. Michel opined that a person could be delusional and still be legally sane;  he made a distinction between being delusional and being decompensated;  in the latter situation the person loses contact with external reality, which Baker did not do.   Although there was no question Baker suffered from ongoing delusions, it was not a question of whether the person was delusional or not, but a matter of degrees.   Although Baker's symptoms may have been becoming exacerbated in the days before the offense, his behavior on the day of the crime was quite purposeful and there was nothing to show he had a break with reality and had become fully decompensated.   At the police interview, he was giving responses that had delusional content, but he was not overtly delusional and was in contact with immediate reality.   Even if he was obsessed with the little sword, his conduct was not motivated by any blatant delusions.

Dr. Michel acknowledged that schizophrenics try not to talk about their delusions since they know people will not believe them, but because it is a disease process they cannot control it and eventually the delusions come out.   Dr. Michel acknowledged that paranoid schizophrenics sometimes prefer to appear evil or criminal rather than admitting their mental illness.

Dr. Michel acknowledged Baker had told him in an interview he had originally believed he had been ordered by the Marine Corps to kill someone and he had decided to kill the manager or staff person at the board and care home, but he told Dr. Michel he gave the idea up before committing the offense.   Dr. Michel did not agree with Dr. Friedman's opinion that Baker's mental illness caused him to believe he had to commit the act in order to protect the women that Fort was sexually molesting or to protect the United States from a Russian spy.

Dr. Donald Strobl opined that although Baker had a major mental disorder, he was not so impaired he could not know right or wrong or know the nature and quality of his offense.   Although there were indications Baker was not functioning as well as he usually did, there was no indication he was acutely psychotic or substantially disorganized, as evidenced by his statements to the police indicating he had a plan to kill someone.   Even if he believed he was acting under the direction of the Marine Corps or in order to protect someone, this does not necessarily mean he did not know it was wrong, and he directly stated he knew it was wrong and he would be punished.   If he was telling the police what he thought they wanted to hear, his ability to do so indicates he was not suffering from a high degree of disorganization.   Dr. Strobl did not view Baker's mention of the plastic sword at the police interview as indicating a major delusion, since although he viewed the sword as a sign, he did not describe a lengthy delusional system.

I

ADMISSION OF PSYCHIATRIC TESTIMONY DERIVED FROM COMPETENCY EXAMINATION AT SANITY PHASE

Baker argues his federal constitutional Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel were violated by admitting Dr. Michel's testimony based on his section 1369 competency trial examination.

Section 1367 provides that while a person is mentally incompetent, defined as being unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner, he cannot be tried or punished.   Dr. Michel was appointed to examine Baker's competence to stand trial pursuant to section 1369.

A

In People v. Arcega (1982) 32 Cal.3d 504, 520–523, 186 Cal.Rptr. 94, 651 P.2d 338, the Supreme Court, on separate state and federal constitutional grounds, held a section 1369 competency expert, unlike a section 1027 sanity expert,³ may not testify at the guilt phase of a trial even if the defendant raises his mental status as a defense.⁴  Arcega explains the “statute regarding court-appointed psychiatric examinations following entry of a plea of not guilty by reason of insanity (§ 1027) contemplates testimony by these experts, and such testimony is admissible at the guilt phase if the defendant places his mental state in issue.  (In re Spencer (1965) 63 Cal.2d 400, 412 [46 Cal.Rptr. 753, 406 P.2d 33] [citation].)”  (Id. at p. 521, 186 Cal.Rptr. 94, 651 P.2d 338.)⁵  In contrast, there “is a rule of immunity for all statements and fruits of a [section 1369] mental competency examination which prevents their use at the guilt trial.”  (Id. at p. 518, 186 Cal.Rptr. 94, 651 P.2d 338.)   In applying the state constitutional protection, Arcega relies on Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 470, 122 Cal.Rptr. 61, which delineates a rule of immunity, based on the constitutional privilege against self-incrimination, precluding the use of information obtained during a section 1369 competency examination to prove guilt.  Tarantino v. Superior Court, supra, at page 469, 122 Cal.Rptr. 61, holds a defendant may be forced to submit to a section 1369 competency examination without violating his no self-incrimination privilege, as long as there is a “judicially declared immunity reasonably to be implied from the code provisions.” ⁶

Approving Tarantino 's rule, Arcega explains:

“[A]dmission of [the competency psychiatrist's] testimony violated the rule of Tarantino that ‘neither the statements of [a defendant] to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of [an individual's] guilt․’  [Citation.]   This rule is necessary to ensure that an accused is not convicted by use of his own statements made at a court-compelled examination.   The rule also fosters honesty and lack of restraint on the accused's part at the examination and thus promotes accuracy in the psychiatric examination.   Hence, the rule protects both an accused's privilege against self-incrimination and the public policy of not trying persons who are not mentally competent.”  (People v. Arcega, supra, 32 Cal.3d at p. 522, 186 Cal.Rptr. 94, 651 P.2d 338.)

A separate component of Arcega 's analysis concludes the federal Constitution also bars use of the section 1369 competency psychiatrist's testimony at the guilt phase, relying on the United States Supreme Court's decision in Estelle v. Smith (1981) 451 U.S. 454, 465–468, 101 S.Ct. 1866, 1874–1876, 68 L.Ed.2d 359.  Estelle holds when a defendant neither initiates a psychiatric examination nor attempts to introduce any psychiatric evidence, he must be informed of and waive his Miranda rights at a state-ordered competency examination before the information obtained at the competency examination may be used at the penalty phase of the trial to establish future dangerousness in support of the death penalty.⁷  In Estelle, the psychiatric evaluation was ordered even though defense counsel had not put into issue the defendant's competency to stand trial or his sanity at the time of the offense.  (Estelle v. Smith, supra, 451 U.S. at p. 457, fn. 1, 101 S.Ct. at p. 1870 fn. 1.)  Estelle, supra, at pages 465–466, 101 S.Ct. at pages 1874–1875 observes when a defendant asserts the insanity defense and introduces psychiatric testimony, his right to silence may not be used to deprive the state of the means to controvert his proof, and accordingly the courts have required the defendant under such circumstances to submit to a sanity examination by the state.   In contrast, in the case before it, the defendant had not introduced any psychiatric evidence, and yet the state offered information obtained from the court-ordered competency examination to obtain a death sentence.  (Ibid.)

Estelle concludes:

“A criminal defendant, who neither initiates a psychiatric examination nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.”  (Id. at p. 468, 101 S.Ct. at p. 1876.)

Estelle v. Smith, supra, 451 U.S. at pages 469–471, 101 S.Ct. at pages 1876–1877, also found a violation of the Sixth Amendment right to counsel since the defendant was not notified in advance that the psychiatric examination would encompass the issue of his client's future dangerousness.

People v. Arcega, supra, 32 Cal.3d at page 523, footnote 5, 186 Cal.Rptr. 94, 651 P.2d 338, notes that Estelle “left open the possibility that the Fifth Amendment privilege might be waived where an accused introduces psychiatric testimony in his favor at the penalty phase.” ⁸  Arcega notes “in the present case, appellant introduced no psychiatric testimony at either the guilt or penalty phase.”  (Ibid.).

Arcega 's arguable implication that the defendant's use of psychiatric testimony might allow the rebuttal use of section 1369 statements was rejected in People v. Harris, supra, 192 Cal.App.3d at pages 948–950, 237 Cal.Rptr. 747, where the court held statements made during the competency examination could not be used to rebut the defendant's psychiatric testimony regarding his mental capacity defense at the guilt trial.   Disagreeing with a holding in People v. Stanfill (1986) 184 Cal.App.3d 577, 229 Cal.Rptr. 215 that a defendant who testifies on his own behalf may be impeached by his section 1369 statements, Harris concludes that waiver of the self-incrimination privilege is inapplicable when applied to section 1369 proceedings.  Harris reasons that since the Tarantino immunity rule promises the competency examination will not be used against the defendant, the failure to honor that immunity when the defendant takes the stand violates due process rights to notice concerning the privilege against self-incrimination.

After Arcega, Estelle, and Harris, the United States Supreme Court rendered its decision in Buchanan v. Kentucky (1987) 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336.   The facts in Buchanan, unlike those in Estelle, involve a voluntary, rather than state-compelled, psychiatric examination.⁹  Defense counsel in Buchanan had requested a psychiatric evaluation to determine if the defendant could be involuntarily hospitalized to receive treatment while awaiting trial, and had at the guilt phase of his murder trial sought to establish a defense of extreme emotional disturbance by having a social worker read from psychological reports made in another case which evaluated his mental condition.  (Id. 107 S.Ct. at pp. 2910–2911.)   Buchanan holds the prosecution was properly allowed to introduce portions of the psychiatric report which the defense had requested for purposes of involuntary hospitalization, to rebut the psychiatric reports introduced by the defendant.   Distinguishing Estelle, Buchanan v. Kentucky, supra, 107 S.Ct. at pages 2917–2918, reasons,

“if a defendant requests such [psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.   The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution.”

The court in Buchanan also noted the portion of the report presented to the jury at the guilt phase did not contain any statements by the defendant dealing with the crimes, but rather consisted of the psychiatrist's general observations about the mental state of the defendant.  (Id. at pp. 2918, 2912, fn. 12.)

Buchanan also rejects the defense argument there was a violation of the Sixth Amendment right to counsel.  Buchanan v. Kentucky, supra, 107 S.Ct. at page 2919, states defense counsel had notice of the possible uses to which the statements made during the psychological evaluation could be put, since given the decision in Estelle v. Smith, “counsel was certainly on notice that if, ․ he intended to put on a ‘mental status' defense ․ he would have to anticipate the use of psychological evidence by the prosecution in rebuttal.”

Although the court in Buchanan was not faced with the issue of whether a psychiatrist's report derived from a state-compelled competency to stand trial examination could be used to rebut the defendant's psychiatric testimony,¹⁰ the court did respond in a footnote to an argument made by the defense pertaining to competency examinations.   The defense argued that if use of pretrial psychological evaluation is allowed, defense counsel will be reluctant to request pretrial competency examinations, and the trial court's duty to order competency examinations whenever there is a doubt about the defendant's mental condition will be undermined.  (Id. at p. 2919, fn. 21.)  Buchanan rejected the argument, stating its decision will not affect competency examinations when the defendant does not place his mental status in issue, since under those circumstances the results of the examination cannot be used for any purpose other than competency unless the defendant waives his Miranda rights.   On the other hand, the court reasoned where “a defendant places his mental status at issue and thus relies upon reports of psychological examinations, he should expect that the results of such reports may be used by the prosecutor in rebuttal.”  (Ibid.)

Buchanan 's holding has been applied by the California Supreme Court in People v. Poggi (1988) 45 Cal.3d 306, 329–330, 246 Cal.Rptr. 886, 753 P.2d 1082 and People v. Williams, supra, 44 Cal.3d at pages 961–962, 245 Cal.Rptr. 336, 751 P.2d 395, which cases hold a section 1027 sanity expert may testify at the guilt or penalty phase to rebut the defendant's psychiatric evidence without violating the Fifth or Sixth Amendments of the federal Constitution.

In People v. Williams, supra, 44 Cal.3d at page 961, 245 Cal.Rptr. 336, 751 P.2d 395, the court explained that the appointment of an expert for a sanity examination pursuant to section 1027 is made only in response to the defendant's entry of a plea of not guilty by reason of insanity;  thus, the examination, initiated at the behest of the defendant, is not “compelled” and Miranda warnings are not required.   Observing that statements made during a section 1027 examination are admissible at the guilt or sanity phase if the defendant puts his mental status in issue, Williams applies the same rule to the penalty phase.   Based on Buchanan, Williams concludes that when a defendant initiates a psychiatric examination, statements made during the examination may be used at a subsequent proceeding in which the defendant places his mental state in issue without violation of the Fifth or Sixth Amendment.  (Id. at pp. 961–962, 245 Cal.Rptr. 336, 751 P.2d 395.)¹¹  Williams points out that even if the defense is not aware at the time of the section 1027 sanity examination of all the possible uses to which his statements might be put, he is on notice that they are admissible in rebuttal in such proceedings.  (Id. at p. 962, 245 Cal.Rptr. 336, 751 P.2d 395;  compare People v. Williams (1988) 197 Cal.App.3d 1320, 1324–1326, 243 Cal.Rptr. 480 [§ 1027 sanity examination, where defendant confessed, may not be used at guilt phase since defendant introduced no psychiatric evidence to rebut and had not put mental state in issue].)

B

Although the above cases provide a general framework and principles helpful to resolving the issue before us, none precisely address the prosecution's use of evidence obtained during a state-compelled section 1369 (not § 1027) competency examination at the sanity (not guilt or penalty) phase of the trial.¹²  Thus, we examine the nature of the sanity phase to determine if equivalent self-incrimination concerns are involved.

Nature of the sanity phase

The sanity defense relieves defendants of criminal responsibility if mental illness at the time of their crimes makes them incapable of knowing or understanding the nature and quality of their acts or of distinguishing right from wrong.  (People v. Skinner (1985) 39 Cal.3d 765, 768, 777, 217 Cal.Rptr. 685, 704 P.2d 752;  § 25, subd. (b).)  California procedure requires the issue of guilt and sanity to be tried separately, with the sanity phase following after a guilty verdict or plea.  (§§ 1016, 1026;  People v. Flores (1976) 55 Cal.App.3d 118, 121, 127 Cal.Rptr. 230.)

Although a defendant who raises a sanity defense will be afforded a separate NGI trial, nevertheless at the guilt phase sanity is presumed and the People must prove the defendant had any specific intent elemental to the charged crime.  (§§ 1016, 1026;  People v. Wells (1949) 33 Cal.2d 330, 350, 202 P.2d 53, overruled on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324, 149 Cal.Rptr. 265, 583 P.2d 1308.)

Because an insane person cannot harbor the requisite mens rea or wrongful intent for criminal liability, the sanity phase involves factors which make it similar to a determination of “guilt.”  (People v. Bales (1974) 38 Cal.App.3d 354, 356, 113 Cal.Rptr. 141;  People v. Flores, supra, 55 Cal.App.3d at p. 121, 127 Cal.Rptr. 230;  see generally, People v. Skinner, supra, 39 Cal.3d at p. 774, 217 Cal.Rptr. 685, 704 P.2d 752.)   On the other hand, the sanity issue is tried only after all elements of the offense have been established, thus, it does not reduce the burden of the People to establish all elements of the crime beyond a reasonable doubt.   The insanity defense has been characterized as not being a true “defense” to a crime;  rather its purpose is to determine whether the accused shall be punished for the guilt which has already been established;  it can be viewed as a special plea to the effect that the insane person is not amenable to punishment under law.  (See discussion in People v. Bales, supra, 38 Cal.App.3d at p. 356, 113 Cal.Rptr. 141.)

 At the sanity phase, there is no presumption of innocence.  (People v. Harmon (1952) 110 Cal.App.2d 545, 554, 243 P.2d 15.)   Instead, there is a rebuttable presumption the defendant was sane when the crime was committed, and it is the defendant's burden to prove insanity by a preponderance of the evidence.  (In re Dennis (1959) 51 Cal.2d 666, 673, 335 P.2d 657;  see generally, 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) § 206, p. 235.)   This burden shift does not violate due process even though in other jurisdictions the prosecution has to prove sanity beyond a reasonable doubt.   (People v. Drew (1978) 22 Cal.3d 333, 349, fn. 14, 149 Cal.Rptr. 275, 583 P.2d 1318.)

 Notwithstanding the bifurcation, the guilt and sanity phases are integral to one criminal trial.  (People v. Worthy (1980) 109 Cal.App.3d 514, 526, 167 Cal.Rptr. 402.)   The defendant at the sanity phase has the right to a unanimous jury verdict (People v. Bales, supra, 38 Cal.App.3d at p. 357, 113 Cal.Rptr. 141), and the privilege against self-incrimination applies (People v. Flores, supra, 55 Cal.App.3d at p. 122, 127 Cal.Rptr. 230).   Based on the privilege against self-incrimination, the defendant cannot be compelled to testify at the sanity phase, and the prosecution may not comment on a failure to testify (Ibid.).

The court in Estelle v. Smith, supra, 451 U.S. at page 462, 101 S.Ct. at page 1872, explained the essence of the privilege against self-incrimination is “ ‘the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.’ ”  (Original italics.)

Another policy underlying the privilege is the maintenance of a fair “state-individual balance” at the criminal trial by requiring the government to shoulder the entire load.  (People v. Coleman (1975) 13 Cal.3d 867, 875, 120 Cal.Rptr. 384, 533 P.2d 1024.)   The heavy burden placed on the prosecution to prove guilt through its own investigation is impermissibly lightened if it can take advantage of earlier statements made by the defendant for other purposes to state officials.  (See Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 809, 210 Cal.Rptr. 204, 693 P.2d 789.)

The availability of the privilege does not depend on the type of proceeding where its protection is invoked, but upon the nature of the statement and the exposure it invites.  (Estelle v. Smith, supra, 451 U.S. at p. 462, 101 S.Ct. at p. 1872.)   Rejecting an argument the privilege was not available once guilt has been adjudicated, the court in Estelle saw no reason to distinguish the penalty phase from the guilt phase at a capital murder trial;  given the gravity of the decision to be made at the penalty phase, the State was not relieved of the obligation to observe fundamental constitutional guarantees.  (Id. at pp. 462–463, 101 S.Ct. at pp. 1872–1873;  cf. People v. Kizzee (1979) 94 Cal.App.3d 927, 938, 156 Cal.Rptr. 784 [notwithstanding guilty plea, privilege against self-incrimination survives until after sentencing].)

In Estelle v. Smith, supra, 451 U.S. at page 466, 101 S.Ct. at page 1874, the defendant's statements to the psychiatrist were used to establish future dangerousness to support the death penalty, an issue which the State was required to prove beyond a reasonable doubt.   In contrast, our Supreme Court has recognized the prosecution's use of otherwise-privileged defense psychiatric information to rebut an insanity defense does not trigger the self-incrimination privilege.  (People v. Rich (1988) 45 Cal.3d 1036, 1086–1087, 248 Cal.Rptr. 510, 755 P.2d 960.)   In those cases where the defendant's commission of the crime has been established, the information obtained from the defense does not make it easier for the prosecution to prove its case-in-chief.  (Ibid.)

When evaluating the extent to which constitutional protections apply in situations other than a guilt trial, the following general principle has been formulated:  “Whether any particular rule of criminal practice should be applied in a [particular] proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding.”  (People v. Moore (1968) 69 Cal.2d 674, 681, 72 Cal.Rptr. 800, 446 P.2d 800, overruled on other grounds in People v. Thomas (1977) 19 Cal.3d 630, 641, fn. 8, 139 Cal.Rptr. 594, 566 P.2d 228 [unlawful search and seizure exclusionary rule applies to narcotic addict commitment proceedings based on policy of deterring police misconduct].)

For example, although a defendant cannot be compelled to testify at a sentencing hearing (Estelle v. Smith, supra, 451 U.S. at p. 464, 101 S.Ct. at p. 1873;  see People v. Bellon (1919) 180 Cal. 706, 708, 182 P. 420), a traditional sentencing proceeding is not governed by the same strict rules of procedure as at the guilt trial and the court may consider matters not admissible on the issue of guilt (People v. Gilbert (1943) 22 Cal.2d 522, 528, 140 P.2d 9).

Thus, we evaluate the extent of protection mandated by the constitution based on the type of proceeding involved and the nature of the specific right asserted by the defendant.   Although the privilege against self-incrimination shields a defendant from being forced to testify at a sanity phase, it does not automatically follow the privilege extends to preclude the use of statements he made during the competency examination.   At this phase the state is not using statements made during the competency examination to establish the elements of the offense, guilt or any other matter on which it has the burden of proof.   Rather than using the defendant's statements to make it easier for the State to convict or punish the defendant, the state is using the statements to controvert the defendant's assertion he should not be punished for the crime he has committed.¹³  Thus, the essential purpose of the privilege against self-incrimination—i.e. to require the state to prove its case without lightening its burden by using the defendant's statements—is not subverted at the sanity phase.  (Cf. People v. Rich, supra, 45 Cal.3d at pp. 1086–1087, 248 Cal.Rptr. 510, 755 P.2d 960.)   Given its unique characteristics, we conclude that although at the sanity phase the privilege against self-incrimination precludes the defendant from being forced to testify, constitutional protection does not require the court to exclude statements made during the competency examination.

We note this is not a case which involves the use of statements obtained by means of improper state coercion tactics, the latter which could support an absolute rule of inadmissibility for any purpose.  (See People v. Rucker (1980) 26 Cal.3d 368, 390, 162 Cal.Rptr. 13, 605 P.2d 843.)   Further, our conclusion based on the unique characteristics of the sanity phase is buttressed by an examination of the nature of the “coercion” when a defendant is ordered to submit to a competency examination in the context of the litigation of his insanity defense.   As we will explain, we conclude that statements made at a competency examination are essentially voluntary when used at the sanity, as opposed to guilt, phase.

Voluntariness of section 1369 competency examination in context of sanity phase

Although a section 1369 competency examination, unlike a section 1027 sanity examination, is not designed for use at the sanity phase, from the point of view of the voluntariness of the examination the same analysis can apply.   When a defendant pleads not guilty by reason of insanity, he is deemed to be voluntarily submitting himself to psychiatric evaluation by the state, and the privilege against self-incrimination is not triggered.  (People v. Williams, supra, 44 Cal.3d at p. 961, 245 Cal.Rptr. 336, 751 P.2d 395.)   As we will explain, when viewed in the context of use at the sanity trial, as opposed to use at the guilt trial, the voluntary character of the psychiatric examination is not any different at the section 1369 competency examination than it is at the section 1027 sanity examination.

The guilt phase does not inherently involve the issue of the defendant's mental status.   Even if the defendant does not raise his mental status during the guilt phase, he may nevertheless be compelled to submit to a competency examination.   Based on this involuntary character, the courts have fashioned a rule that for purposes of the guilt phase, the privilege against self-incrimination is triggered at the competency examination and bars the prosecution's use of the information, even in rebuttal where a defendant defends on mental state at the guilt phase.   On the other hand, the People may use the “voluntary” section 1027 sanity examination information to rebut that same defense to guilt.

The sanity phase submits the defendant's mental status as its single issue, one which the defendant voluntarily raises.   Thus, the sanity phase by its nature does not involve the concerns present at the guilt phase when a defendant may be required to speak to a state-appointed psychiatrist even though not wishing to litigate mental status or to present psychiatric testimony.   Rather, defendants who present an insanity plea and follow it through to a sanity trial, voluntarily open their mental state to psychiatric examination and litigation.   Although the issues addressed at a competency examination are not precisely the same as those involved in a sanity examination (see People v. Brock (1962) 57 Cal.2d 644, 648–649, 21 Cal.Rptr. 560, 371 P.2d 296), the concepts overlap and an expert who examines present competency may well form a reliable opinion as to sanity at the time of the offense (see, e.g., In re Dennis, supra, 51 Cal.2d at pp. 669–671, 335 P.2d 657).¹⁴

We conclude the privilege against self-incrimination does not attach to the competency examination for sanity phase purposes, and there is no reason to impose a barrier to the People's introduction of relevant psychiatric testimony derived from a section 1369 competency examination.

C

 Finally, we reject Baker's assertion his Sixth Amendment right to counsel was violated by the use of the competency examination information at his sanity trial.   Sections 1368 and 1369 by their terms assume notice of the competency examination to defense counsel, and here the order for the examination was made at a hearing where defense counsel was present.   Thus, Baker had an opportunity to consult with his counsel about the examination.   Further, the Estelle and Arcega cases, decided in 1981 and 1982 respectively, raised the possibility that if the defendant introduced psychiatric testimony, the prosecution might be allowed to rebut with psychiatric testimony derived from the section 1369 examination.   Thus, defense counsel could have reasonably anticipated at the time of the April 1987 competency examination order here, that since the defendant would present psychiatric testimony at the sanity phase, the competency examination might not be immunized from use at the sanity phase.  (Buchanan v. Kentucky, supra, 107 S.Ct. at p. 2919.)

II–V 15

VI

 Finally, Baker argues the recent case People v. Stress (1988) 205 Cal.App.3d 1259, 1272–1276, 252 Cal.Rptr. 913, requires reversal.   He asserts that under the Stress case, the pertinent inquiry is whether the defendant appreciated the moral, not legal, wrongfulness of his conduct.   Baker asserts the jury was misled since the trial was premised on the theory that sanity refers only to an understanding of legal wrongfulness, and that the jury should have been instructed as to the distinction between legal and moral wrong.

Initially, Baker mischaracterizes the Stress case as stating that knowledge of legal wrongfulness is irrelevant and an incorrect inquiry when evaluating sanity.   To the contrary, Stress expressly observes that knowledge of legal wrongfulness is relevant to the issue of sanity, although not necessarily determinative.¹⁶

People v. Stress, supra, 205 Cal.App.3d at page 1272, 252 Cal.Rptr. 913, did not create a new test of insanity, but rather merely reiterated the rule extensively discussed in People v. Skinner, supra, 39 Cal.3d at pages 778–784, 217 Cal.Rptr. 685, 704 P.2d 752, that a defendant who could comprehend his act was unlawful could still be legally insane if his mental disease caused him to believe his act was inherently or morally correct (for example, commanded by God).

The record here could arguably support an inference that Baker believed his act was legally wrong under state criminal law (i.e. he would go to prison) but morally right under higher national security interests (i.e. he was on a mission to kill a Russian spy), as well as the contrary inference that he knew it was legally and morally wrong (i.e. he killed the victim because he was fed up with the victim's obnoxiousness).   Contrary to Baker's assertion, the trial did not focus only on Baker's understanding of the legal wrongfulness so as to mislead the jury as to the scope of the relevant inquiry.   For example, Baker claims the prosecution in its closing argument solely emphasized Baker's response during his confession that the result of his act was prison, whereas in fact the prosecution referred also to Baker's affirmative response when asked if he knew his act was wrong.¹⁷  Both the prosecution and defense expert witnesses evaluated Baker's understanding of wrongfulness in general terms, not just in terms of whether he understood legal wrongfulness.

Regarding his claim of inadequate instructions, based on the established law in Skinner the defense could have requested a clarifying instruction explaining that “wrong” refers to both legal and moral knowledge of wrongfulness if it felt it was necessary.   The standard instruction in CALJIC No. 4.00 which generally refers to being incapable of distinguishing right from wrong without singling out legal or moral wrong, adequately informs the jury of the law, and if the defense feels a clarifying instruction is necessary in a particular case, it may request one.   Having failed to do so, the issue is waived.  (People v. Carothers (1946) 77 Cal.App.2d 252, 255, 175 P.2d 30.)

Although the evidence in this case could reasonably support a verdict either way, we are not persuaded by Baker's speculation the errors had a cumulatively prejudicial effect so as to require reversal.   The errors were not substantial in the sense of tilting the weight of the evidence.   It is not reasonably probable the errors would have affected the jury's decision.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   Section 1027 provides that when a defendant pleads not guilty by reason of insanity the court must select and appoint two or three experts to examine the defendant, and the experts must testify, whenever summoned, in any proceeding in which the defendant's sanity is in question.

4.   The defendant in Arcega, as a defense to murder at his guilt trial, presented testimony by his mother that he had suffered a head injury.  (People v. Arcega, supra, 32 Cal.3d at pp. 510, 516, 520, 186 Cal.Rptr. 94, 651 P.2d 338.)

5.   As we discuss infra, section 1027 sanity examinations are considered inherently voluntary since they are only ordered when a defendant enters a not guilty by reason of insanity plea.  (People v. Williams (1988) 44 Cal.3d 883, 961, 245 Cal.Rptr. 336, 751 P.2d 395.)

6.   Tarantino v. Superior Court, supra, 48 Cal.App.3d at pages 469–470, 122 Cal.Rptr. 61, states:“The purpose of such [competency] inquiry is not to determine guilt or innocence.   It has no relation to the plea of not guilty by reason of insanity.   Rather, the sole purpose of these statutes is the humanitarian desire to assure that one who is mentally unable to defend himself not be tried upon a criminal charge.   This purpose is entirely unrelated to any element of guilt, and there is no indication of any legislative intent that any result of this inquiry into a wholly collateral matter be used in determining the issue of guilt․“․ we have no hesistancy in declaring that neither the statements of petitioner to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of petitioner's guilt, under either the plea of not guilty or that of not guilty by reason of insanity.   This immunity will be extended by the federal courts to use of such testimony or its fruits in any possible federal prosecution.   (Murphy v. Waterfront Comm'n. [1964], 378 U.S. 52, 79 [84 S.Ct. 1594, 1609, 12 L.Ed.2d 678] [citation], summarized in Byers [v. Justice Court for Ukiah Judicial Dist. of Mendocino County (1969) ], 71 Cal.2d [1039] at p. 1053 [80 Cal.Rptr. 553, 458 P.2d 465].   We recognize that this immunity normally will require that the psychiatrists appointed for examination under section 1367 et seq. be other than those appointed for inquiry under section 1026.”  (Italics added.)

7.   People v. Arcega, supra, 32 Cal.3d at page 523, footnote 6, 186 Cal.Rptr. 94, 651 P.2d 338, observes that the Supreme Court in Estelle indicated that if after receiving his Miranda warnings, the defendant refuses to answer the psychiatrist's questions, the competency examination may nevertheless proceed upon the condition the results would be applied solely for the purpose of the competency hearing.  Arcega notes this would result in the peculiar situation that a defendant who has just been told he need not answer questions, would thereafter be told he was nevertheless required to answer;  whereas the blanket immunity of Tarantino avoids such an anomaly in California.In People v. Harris (1987) 192 Cal.App.3d 943, 949, 237 Cal.Rptr. 747, the court reasoned that since section 1369 competency examinations cannot be used against the defendant under the Tarantino rule, a Miranda warning is not necessary.

8.   The possible use of the psychiatric testimony to rebut the defendant's psychiatric testimony could be based on the general principle that when a defendant introduces a type of evidence which the prosecution may not ordinarily introduce, fairness might require allowing the prosecution to controvert the defendant's evidence by introducing like evidence which is otherwise excluded for the defendant's benefit.  (See generally, Wigmore on Evidence (1983) § 58, pp. 1198–1203, § 58.2, p. 1228, § 15, p. 741.)

9.   In Arcega, unlike the situation in Estelle, defense counsel requested the section 1369 competency examination.  (People v. Arcega, supra, 32 Cal.3d at p. 521, 186 Cal.Rptr. 94, 651 P.2d 338.)   Nevertheless, the court in Arcega applied the Tarantino rule which is premised on the court's power to compel the competency examination against the defendant's wishes.

10.   In Buchanan, the trial court had ordered a psychological evaluation for competency purposes, but kept the report confidential from both sides.  (Id. at p. 2911, fn. 11.)   Additionally, the psychological report requested by the defense for determining involuntary hospitalization included an opinion regarding competency to stand trial, but the edited version presented to the jury omitted that portion of the report.  (Id. at pp. 2911–2912, 2918, fns. 11, 12, 20.)

11.   The defendant in Williams presented his history of mental illness at the penalty phase in an effort to avoid the death penalty.   (Id. at p. 961, 245 Cal.Rptr. 336, 751 P.2d 395.)

12.   In People v. Arcega, supra, 32 Cal.3d at pages 510, 517, 186 Cal.Rptr. 94, 651 P.2d 338, the trial consisted of separate guilt, sanity, and penalty phases, and the same evidence was considered at all three phases.   However, the court in Arcega confined its analysis of the competency examination immunity rule only to the guilt phase.  (Id. at pp. 517–518, 186 Cal.Rptr. 94, 651 P.2d 338.)Tarantino v. Superior Court, supra, 48 Cal.App.3d at page 470, 122 Cal.Rptr. 61, broadly states the section 1369 examination may not be used “in trial of the issue of petitioner's guilt, under either the plea of not guilty or that of not guilty by reason of insanity” without clarifying whether the immunity rule applied to the sanity phase.

13.   If the defendant is found not guilty by reason of insanity, he is deemed not criminally responsible for the offense, but he may be confined to a mental hospital for treatment.  (In re Moye (1978) 22 Cal.3d 457, 466, 149 Cal.Rptr. 491, 584 P.2d 1097;  People v. Bodis (1985) 174 Cal.App.3d 435, 437, 220 Cal.Rptr. 57;  § 1026.)

14.   Indeed, in this case Doctors Koshkarian and Friedman testified for the defense both at the sanity phase and at the competency trial.

15.   See footnote 1, ante.

16.   People v. Stress, supra, 205 Cal.App.3d 1259, 252 Cal.Rptr. 913 states:“It is clear in California ‘wrong,’ as the term is used in section 25, subdivision (d), refers both to legal wrong and moral wrong.”  (Id. at p. 1272, 252 Cal.Rptr. 913.)“ ‘ “Knowledge that an act is forbidden by law will in most cases permit the inference of knowledge that, according to the accepted standards of mankind, it is also condemned as an offense against good morals․  “[Citation.]’ ”  (Id. at p. 1274, 252 Cal.Rptr. 913.)While ․ in most instances legal wrongfulness and moral wrongfulness are equivalent, this is not always the case [citations] and a defendant is free to argue, ․ that while he was able to distinguish between legal right and wrong he could not distinguish between moral right and wrong.”  (Id. at p. 1275, 252 Cal.Rptr. 913.)

17.   In closing argument, the prosecution characterized Baker as having answered “yes” when asked if he knew his act was wrong.   The tape itself indicates Baker responded with a word which the defense transcribes as “Mmhmm.”   The jury heard the tape and could evaluate for itself the nature of Baker's response, in conjunction with the entire circumstances of the case, to decide if Baker understood his act was wrong.

WORK, Acting Presiding Justice.

TODD and NARES, JJ., concur.