PEOPLE v. WESTBROOK (1964)

The present appeals raise a common question of law; they have been submitted to us on a single set of briefs; we deal with them in one opinion.¹

In Crim. No. 9060, defendant was charged by information with one count of Grand Theft (Pen. Code, § 487, subd. 3) and with one count of violation of section 10851 of the Vehicle Code. On arraignment, the court, after reading a medical report prepared by a psychiatrist employed by defense counsel, continued the matter and referred the case to the Psychiatric Department of the court ‘under Section 5047 Welfare and Institutions Code.’ The file contains a document in which that department reported that ‘Preliminary medical examination indicates that defendant is not mentally ill.’ Thereafter, defendant pled guilty to the count of violation of Vehicle Code, section 10851, and a probation report was ordered. Subsequently, the defendant was referred to a private psychiatrist for examination. When the case finally came on for sentence, the court discussed the report of this doctor, suspended proceedings, and placed defendant on probation.

Nine months later, a hearing on a charge of violation of probation was called and transferred to another department, where defendant stood accused of two other offenses (the subject matter of the other two cases now before us),² which alleged offenses were the subject of the alleged violation of probation.

The judge presiding in the final department again ordered defendant referred for psychiatric examination. On the receipt of a report that defendant ‘* * * is able to proceed in the matter before him, and that he would be considered to be legally sane, knowing the difference between right and wrong, being aware of the nature and consequences of his acts, and being able to cooperate with counsel to aid in making a plan in his own defense,’ the court proceeded to take a plea of guilty to the two new offenses, denied probation, and sentenced defendant, on all three cases, to state prison, the sentences to run concurrently.

I

On appeal, appointed counsel urges principally that defendant was tried and sentenced in violation of the requirements of sections 1367 and 1368 of the Penal Code. These sections read as follows:

Section 1367: ‘A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.’

Section 1368: ‘If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded; and, from the time of such order, all proceedings in the criminal prosecution shall be suspended until the question of the sanity of the defendant has been determined, and the trial jury in the criminal prosecution may be discharged, or retained, according to the discretion of the court until the determination of the issue of insanity.’

Counsel argues that the statements made by the two trial judges, and their actions in securing psychiatric opinions as to defendant's mental condition, shows that a ‘doubt’ had arisen in their minds within the meaning of section 1368 and that they were therefore, required to proceed to suspend the criminal proceedings and to hold the hearing prescribed by that section.

II

The Attorney General argues that, assuming that a doubt did exist, the proceedings before the final judge amounted to a hearing and (no jury having been asked for) satisfied section 1368. This contention is without merit. As was said in People v. Jackson (1951) 105 Cal.App.2d 811, 815–816, 234 P.2d 261, 264:

‘By the terms of section 1368, once a doubt has arisen, a trial on the issue of present sanity becomes mandatory, and that trial must be entirely separate and independent of the criminal proceeding. [Citation.] And, as stated in the Vester case, [People v. Vester (1933) 135 Cal.App. 223 [26 P.2d 685]], failure to conduct such trial in the face of the existing ‘doubt’ is a denial of substantial rights of the defendant.'

The proceedings before the sentencing judge, in the cases before us, clearly were part of the criminal proceedings and, as in Jackson, did not satisfy the requirement for a separate hearing on the issue of present sanity.

III

The Attorney General argues, secondly, that no motion for a hearing on the issue of present sanity was ever made by defendant or any of the counsel who represented him. However, such a request is unnecessary. (People v. Ah Ying (1871) 42 Cal. 18, 21; People v. Vester (1933) supra, 135 Cal.App. 223, 233, 26 P.2d 685, 689.) In the latter case, the court said: ‘There is no plea of present insanity required. If at any time a doubt arose as to the sanity of the defendant, it was the duty of the Court, of its own motion, to suspend the trial or further proceedings in the case, at whatever stage the doubt arose, until the question of sanity was determined. Common humanity requires that one should not be tried for his life while insane, and counsel for defendant cannot waive such inquiry when the doubt exists; * * *.’

IV

We come, then, to the chief contention of defendant—namely that the statements of the two judges, the fact that they had ordered psychiatric examinations, and the reports of those examinations, showed that a ‘doubt’ must have existed in their minds. In support of that contention, counsel relied on People v. Jackson, supra, 105 Cal.App.2d 811, 234 P.2d 261, and on People v. Vester, supra, 135 Cal.App. 223, 26 P.2d 685. However, in both cases, not only were psychiatric reports before the court, but those reports contained uniform findings of some form of mental illness. We think the more pertinent authority is the decision of the Supreme Court in People v. Merkouris (1959) 52 Cal.2d 672, 678–681, 344 P.2d 1. In that case, as in these, there was a discussion between defense counsel and the court as to present sanity; in that case, as here, reference was made to psychiatrists for reports, with the concurrence of both counsel; in that case, as here, the reports, although discussing the issues of defensive insanity and of mental illness as defined in section 5047 of the Welfare and Institutions Code—issues which differ from the test prescribed for present insanity—also clearly show that defendant was sane in the sense of sections 1367 and 1368.³

In Merkouris, as here, the trial judge, after receiving these reports proceeded with the trial. ‘The trial court's appointment * * * of two psychiatrists to examine defendant and report to the court, and its continuance of the matter, do not indicate that the court had a doubt as to defendant's sanity.’ (People v. Merkouris, supra, 52 Cal.2d 672, 680, 344 P.2d 1, 5.)

The ‘doubt’ to which section 1368 refers is ‘one that must arise in the mind of the trial judge, rather than in the mind of counsel for the defendant or in that of any third person.’ (People v. Perry (1939) 14 Cal.2d 387, 399, 94 P.2d 559, 565, 124 A.L.R. 1123.) The rule in California has been summarized as follows:

‘Although Penal Code section 1368 gives the accused a right to a trial of his present sanity, it is conditioned on the existence in the trial judge's mind of a doubt as to the defendant's sanity, and in the absence of such doubt the court is not warranted in calling a special jury. An inquest on the matter is therefore not required upon a bare unsupported suggestion that the defendant is insane, nor even an affidavit as to his present insanity, nor findings of alienists, and it cannot be said that any statements made to the judge, of themselves, compel a doubt as to the sanity of the defendant. The court, in determining whether a reasonable doubt as to sanity exists, may itself make a preliminary investigation and hear evidence. If, upon this evidence, the court has no reasonable doubt of the defendant's sanity, it should refuse a jury trial. An admission of evidence on the question of insanity, or recommendation that the defendant be placed in care of psychiatrists is not sufficient to show a doubt.’ (27 So.Cal.L.Rev. 200 (1954), where the cases on this point are collected.)

Any other rule would lead to absurd results. The ‘doubt’ of which section 1368 speaks is different from a mere suspicion. We think it entirely proper for a trial judge, when a suggestion of mental problems is made, to secure professional advice. Such action does not necessarily indicate that a doubt as to a defendant's sanity has already arisen in the judge's mind, but only that the judge is desirous of ascertaining whether conditions complained of or observed by the judge or others, are indicative of the existence of a mental condition from which a doubt would arise as to defendant's sanity. At that point the judge has an open mind on the subject. Only the question has arisen, not a doubt. When, as here, the professional advice clearly shows that, whatever the defendant's psychiatric problems may be, they do not interfere with his participation in his trial nor with cooperation with counsel, the court is justified in concluding that the conditions complained of or observed do not establish a doubt in his mind as to defendant's sanity. The question which arose was answered. Since there is nothing to warrant a doubt, section 1368 becomes inapplicable.⁴

V

The notices of appeal filed in cases 9060 and 9061 contain the following language: ‘I am now changing my plea now from guilty to innocent by the reason of insanity.’ Counsel suggests that this should be treated as a petition in the nature of coram nobis. As the Attorney General correctly contends, such an application must be made in the trial court and not here. Apparently, this portion of the document was never brought to the attention of the trial court and, of course, has never been acted on by it. Ordinarily, we would have remanded these proceedings to the trial court for decision of this request before we considered the appeal from the judgment. However, since the request, as quoted above, without statement of reasons or further amplification, was clearly insufficient to justify the relief sought, the trial court, had it considered the request, could only have denied it. Under the circumstances, no prejudice has resulted from the failure of the clerk of the lower court to bring the matter before that court for hearing.

The judgments appealed from are affirmed.

FOOTNOTES

1.  At the request of counsel, we augmented the record on appeal by the superior court files in the three cases herein involved.

2.  In case No. 9061, the offense on which defendant was sentenced was a violation of Vehicle Code, section 10851; in case No. 9062, the offense was forgery (Pen.Code, § 470).

3.  ‘A defendant is sane, within the meaning of section 1368 of the Penal Code, if he is able to understand the nature and purpose of the proceedings taken against him and to conduct his own defense in a rational manner. [citations.]’ (People v. Merkouris, 52 Cal.2d 672, 678, 344 P.2d 1, 4.)

4.  It was with the hope of clarifying the procedure for raising and determining the issue of present sanity that the Special Study Commissions on Insanity and Criminal Offenders, in 1962, recommended to the Governor and the Legislature a comprehensive revision of the present sections 1367 and 1368. (See Second Report, Special Commissions on Insanity and Criminal Offenders, Nov. 15, 1962).

KINGSLEY, Justice.

BURKE, P. J., and JEFFERSON, J., concur.