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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Maitland DWIGHT, Jr., Defendant and Appellant.

Cr. 21592.

Decided: October 13, 1972

Robert G. Eckhoff, public Defender, County of Santa Barbara, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Russell Iungerich and Edward T. Fogel, Jr., Deputy Attys. Gen., for plaintiff and respondent.

In a complaint filed in the Municipal Court of the Santa Barbara-Goleta Judicial District for the County of Santa Barbara, defendant was charged with the misdemeanor of battery (Pen.Code, § 242). Defendant was arraigned. A doubt arose in the mind of the court as to defendant's sanity and the criminal proceedings were suspended and defendant was certified to the superior court for a hearing and examination to determine his present sanity under Penal Code, section 1368. This was done by an order certifying defendant to the superior court for a hearing and examination to determine his sanity pursuant to Penal Code, section 1386, in case number 140882 in the municipal court. This was dated January 14, 1972, and signed by the judge.

In the superior court defendant was examined pursuant to Penal Code, section 1368. A sanity hearing was held and defendant was found insane within the meaning of that code section, and defendant was ordered committed to Atascadero State Hospital for care and treatment until he becomes sane and until further order of the court.

Defendant appeals from the order committing him to Atascadero State Hospital.

It was stipulated that Dr. Donald Patterson was a physician duly licensed to practice in the State of California and that he was a ‘duly qualified psychiatrist in the State of California.’ He had testified as an expert on approximately 100 occasions. He had examined defendant in the county jail, pursuant to an appointment by the court. As a result of that examination he testified that he had concluded that defendant was, at the time of the hearing herein involved, incapable of understanding, in a meaningful way, the nature of the proceedings against him, or the charges against him, and that defendant was unable to participate in a meaningful was in the preparation of his defense. As a basis for that conclusion, Dr. Patterson testified that, in his opinion, defendants had poor ability to concentrate, had hallucinatory manifestations and had inappropriate responses to situations, such as inappropriate laughter. Dr. Patterson testified that, in his opinion, defendant's hallucinations broke his stream of thought; Dr. Patterson also concluded that defendant was faulty in his orientation as to time and was inaccurate as to events. The doctor indicated that, in his opinion, defendant was mentally ill and should be committed to a maximum security-type hospital.


Defendant argues that the record on appeal fails to show jurisdiction of the superior court to hold proceedings. He asserts that the record on appeal does not include and document showing that the municipal court judge found a doubt as to the sanity of the defendant and had certified the case to the superior court for trial on that basis.

The People have augmented the record on appeal to include the document that shows that the judge of the municipal court found a doubt as to defendant's present sanity, and ordered defendant's case to the superior court below for determination of his present sanity pursuant to Penal Code, section 1368. There was no error.


Defendant's second contention is that the evidence presented by the prosecution was insufficient to meet the test of present insanity. Dr. Patterson, the only psychiatrist who testified on the issue, stated that he had examined defendant, that defendant mentally ill, and that defendant could not understand the charges against him or participate in the preparation of his defense in a meaningful manner. He also testified concerning defendant's hallucinations, inability to concentrate, his disordered thought processes, and his inappropriate responses, and his state of confusion. ‘If a psychiatrist or qualified psychologist [citation] who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satified.’ (People v. Pennington (1967) 66 Cal.2d 508, 519, 58 Cal.Rptr. 374, 381, 426 P.2d 942, 949.) Judged by the standard in the Pennington case there was sufficient evidence to justify the finding of insanity.

Defendant's assertion that People v. Pennington, supra, 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942, is only authority relative to suspending proceedings under Penal Code, section 1368, and not the test for a finding under Penal Code, section 1369, does not aid his case. Both sections deal with insanity of the defendant and the test for insanity under both sections would be the same.


Defendant contends that the court erred in permitting the People to open the case and offer evidence in support of insanity, in violation of Penal Code, section 1369, subdivision 1, which states: ‘. . . counsel for the defendant must open the case and offer evidence in support of the allegation of insanity.’ (Emphasis supplied.) The court did not err in permitting the People to open the case. Defendant below refused to offer any evidence on sanity and instead moved for ‘a directed verdict of sane’ arguing that defendant had a waivable right to a hearing under Penal Code, section 1368. The trial court's obligation to hold a hearing, if a doubt arises in the judge's mind as to the defendant's present sanity, cannot be affected or waived by defendant or his counsel. (People v. Westbrook (1964) 62 Cal.2d 197, 41 Cal.Rptr. 809, 397 P.2d 545.) Therefore, the court had no choice other than to permit the prosecution to put on evidence first where the defendant refused evidence first where the defendant refused to offer evidence on the question of insanity. The words of Penal Code, section 1368,1 requiring the court to determine the question as to defendant's sanity, where a doubt arises as to defendant's present sanity, are mandatory words, and leave no room for the judge's discretion. Also, Penal Code, section 1367, provides that a defendant may not be tried for a crime while insane. Under the circumstances there was no error.

Defendant also argues that he was denied a right to a speedy trial on the criminal charges where he was forced to have a hearing on present sanity where he did not want a hearing. Where a delay is caused by successive proceedings to determine present sanity the delay for such purpose does not deny the right to a speedy trial. (People v. Lohman (1970) 6 Cal.App.3d 760, 86 Cal.Rptr. 221; see People v. Hocking (1956) 140 Cal.App.2d 778, 783–784, 296 P.2d 59.)


Defendant argues that the commitment to a state hospital under maximum security conditions for an indefinite period is a cruel and unusual punishment. We do not agree. The commitment of mentally disordered sex offenders and of narcotic addicts for corrective treatment does not constitute a cruel and unusual punishment (In re De La O (1963) 59 Cal.2d 128, 149–150, 28 Cal.Rptr. 489, 378 P.2d 793; People v. Rancier (1966) 240 Cal.App.2d 579, 585, 49 Cal.Rptr. 876), and by analogy, commitment under sections 1368 and 1369 of the Penal Code for care and treatment should not be considered a cruel and unusual punishment. Furthermore, a proceeding under Penal Code, section 1368, is not a punishment of any type, and it therefore follows that it cannot be a cruel and unusual punishment. In People v. Fields (1965) 62 Cal.2d 538, 42 Cal.Rptr. 833, 399 P.2d 369, it was held that, in a proceeding under section 1368, a defendant is not charged with a criminal act and is not subject to criminal proceedings or punishment if he is found insane. It is a special proceeding rather than a criminal action.


Defendant argues that he has been denied equal protection of the laws as compared to other mentally ill persons who are processed under the provisions of the Welfare and Institutions Code. Defendant points out that, had he been confined in the county jail, he could have been transferred for proceedings under the Welfare and Institutions Code, pursuant to Penal Code, section 4011.6, and, after being so transferred, he would be entitled every year to retrial on the question of present sanity. (Pen.Code, § 4011.6.) Penal Code, section 4011.6 deals with persons who may be ‘mentally disordered,’ and Penal Code, section 1368, deals with persons who may be ‘insane.’ The definition of ‘sanity’ under Penal Code, section 1368, is specific to that code section (see People v. Jensen (1954) 43 Cal.2d 572, 578, 579, 275 P.2d 25), and uses different criteria from both the McNaughton definition of insanity (see People v. Pennington, supra, 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942; People v. Brock (1962) 57 Cal.2d 644, 21 Cal.Rptr. 560, 371 P.2d 296) and from the definition of ‘mentally disordered’ under section 4011.6 of the Penal Code. Therefore, defendant, who is insane, is in a different class from persons who are ‘mentally disordered’ under Penal Code, section 4011.6, and he has not been denied equal protection by virtue of being treated differently from those transferred in Penal Code, section 4011.6.


Defendant also argues in his closing brief that he has been denied equal protection as compared to persons who are committed in ordinary civil commitment proceedings. Defendant relies on the recent United States Supreme Court case of Jackson v. Indiana (1972) 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435. In the Jackson v. Indiana case the Indiana lower court found the accused unable to stand trial on the grounds that the accused was a mentally defective deaf mute who was unable to communicate and who lacked comprehension sufficient to make his defense. He was ordered committed to the state department of mental health until such time as that department should certify to the court that the ‘defendant is sane.’ The Supreme Court of the United States reversed on the grounds that the state ‘cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetence to stand trial on the charges filed against him.’ (Jackson v. Indiana, supra, 92 S.Ct. 1845, at 1849, 32 L.Ed.2d 435, at 440.) Unlike California, Indiana had provided no statutory provisions for periodic review of defendant's condition by either the court or mental health authorities, and there was nothing to suggest that defendant's commitment was a temporary one, since there was much testimony to the effect that defendant Jackson probably never would be able to develop the skills necessary for him to participate in any defense.

The Supreme Court held that the accused's commitment violated the equal protection clause because he was subjected to a more stringent standard of release and a more lenient standard of commitment than those generally applicable to all other persons not charged with offenses, condemning the defendant to permanent institutionalization without the safeguards and the standards afforded by ordinary civil commitment procedures. In Jackson, the United States Supreme Court said (at p. 444, 92 S.Ct. at p. 1852): ‘There is nothing in the record that even points to any possibility that Jackson's present condition can be remedied at any future time.’ The court added that Jackson's commitment ‘is permanent in practical effect.’

In the case at bench, unlike Jackson, there is nothing in the record to show that ‘in practical effect’ defendant's commitment is permanent. If, after a reasonable time has elapsed, the superintendent of Atascadero does not certify to defendant's sanity, he may seek release by habeas corpus (cf. People v. Ashley (1963) 59 Cal.2d 339, 29 Cal.Rptr. 16, 379 P.2d 496), either on a showing that he is then, in fact, sane within the meaning applicable to his commitment or on a showing which invokes the Jackson rule. On either showing his present commitment will terminate and he will either be returned to the municipal court for trial or he will be released from Atascadero subject to appropriate proceedings under the statutes dealing with civil commitment. It follows the commitment order is not open to attack; defendant's remedy is, at a proper time, to invoke habeas corpus. But the time for such proceeding has not yet occurred.

The order appealed from is affirmed.


1.  Penal Code, section 1368, reads as follows:‘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, ar 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.’

KINGSLEY, Associate Justice.

FILES, P. J., and DUNN, J., concur.

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Docket No: Cr. 21592.

Decided: October 13, 1972

Court: Court of Appeal, Second District, Division 4, California.

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