PEOPLE v. BUCKNER (1981)

OPINION

An information was filed charging appellant James Edward Buckner with battery on a peace officer (Pen. Code, §§ 242, 243). Upon appellant's request, the court appointed a psychiatrist (Dr. Kelly) to examine appellant for purposes of determining whether he had any defenses based on a mental or emotional condition (Evid. Code, § 1017). Subsequently, pursuant to Penal Code sections 1368 and 1369, the court appointed two additional psychiatrists (Drs. Matychowiak and Burdick) for purposes of determining whether appellant was mentally competent to stand trial.

A jury then considered the issue of appellant's mental competence before any criminal proceedings were had. The jury returned a verdict finding appellant mentally competent for purposes of standing trial.

A jury trial then began on the underlying criminal charge. In the trial judge's chambers, trial counsel for appellant again questioned his client's mental competence to stand trial.¹ The court held that appellant was competent and proceeded with jury voir dire. Following appellant's tenth outburst about being on trial and other conduct during voir dire, the trial judge excused jurors from the courtroom. The trial judge then proceeded to reexamine the issue of appellant's mental competence. After considering two of the psychiatric reports presented at the previous jury hearing on competence,² the court found that appellant was mentally competent to stand trial and that “he is acting out a delusion, in a non-sensical manner here, to attempt to not go to trial, …” Voir dire was then completed, the jury was impaneled, and trial testimony was presented. Thereafter, the jury found appellant guilty of having committed a battery on a peace officer as charged in the information.

Appellant moved for a new trial on the grounds that it was error to refuse the instruction on simple battery and that the court erred in not ordering a new hearing on his mental competence to stand trial. This motion was denied. Appellant was sentenced to state prison for the aggravated term of three years. He appeals.

THE MENTAL COMPETENCE HEARING

Appellant called three witnesses for purposes of establishing his mental incompetence.

Dr. Phillip Kelly, a Bakersfield psychiatrist, opined that appellant was not mentally competent to stand trial. His opinion was based upon reports of other psychiatrists, an interview with appellant on September 1, 1978, in the Kern County jail, appellant's past history of hospitalization at Atascadero State Hospital, and his belief that appellant was suffering from Ganser syndrome. Kelly stated that, on one occasion, appellant “talked about not being in jail but rather being in some kind of a center belonging to some organization and that he was in this present situation because he was being the liaison to the other organization.” He stated that a number of appellant's statements “were obviously not talking about reality.” Kelly also did not believe that appellant was attempting to fool the psychiatrist or psychologist who examined him. Kelly then provided a description of Ganser syndrome, a mental illness which he said inflicted individuals waiting for trial or individuals “having other stressful situations.” He stated that an individual suffering from Ganser syndrome “cannot face the responsibility to himself and therefore needs the, psychologically and unconsciously, needs to somehow make himself irresponsible and therefore not responsible for his situation.” Moreover, Kelly indicated that the syndrome would affect a prisoner's “ability to deal in a rational manner with anything that had to do with being in jail or his own image.” As applied to appellant, Kelly stated that “he really could not be very concrete about the organization because he could not give me any details and the more you tried to push him on the organization the more tangential going away from it that he was and this is kind of typical [of Ganser syndrome].” From this, Kelly concluded that appellant could not participate in his own defense because he was operating under the delusion that all charges had been dropped against him. He also indicated that this incapacity to assist counsel was a product of the Ganser syndrome. Although conceding that the syndrome could be feigned, Kelly expressed the belief that appellant was not faking the particular disorder. During his interview at the jail, Kelly stated that appellant “was wondering if I was the one, the person from the organization that was going to take him out and then, this reoccurred a couple of times but he was willing to accept me as an interviewer.” Finally, Kelly reiterated “there is no doubt in my mind that he is trying to fool himself but not other people.”

Trent Devenney, an attorney, interviewed appellant at defense counsel's request. In response to Devenney's inquiries about the nature of the proceedings, appellant indicated that “he did not feel that there were any charges pending against him, he was waiting to go home practically at any moment.” Devenney asked him if he understood why he was in jail; to this line of questioning, appellant oscillated between stating he was in a control center dominated by beings from outer space to recognizing that he was in a jail. Devenney said that appellant's answer to questions rambled from the issue in question. Further, Devenney stated that “I don't believe that I was getting any answer from him that would assist me of defending him against the underlying charge for any of these proceedings.” The attorney also indicated that appellant did not feel there were any criminal charges against him.³

Appellant took the stand and initially testified that he did not believe he was facing any criminal charges. Nevertheless, in subsequent testimony, appellant conceded that charges had not been dismissed and that he had been charged with “forgery of a prescription and assault on an officer here in Kern County Jail.” Appellant said that the forgery case was dismissed and the sentencing judge praised him for his “remarkable job” of directing an Indian organization to which he belonged. Appellant then related nonsensical testimony about why he was in prison (which he labeled a “camp”) at Chino. So far as the present proceeding was concerned, appellant recognized that it was a hearing held pursuant to Penal Code section 1368 for purposes of determining his mental competence to stand trial. He also acknowledged that he would have to submit to psychiatric treatment until he was able to stand trial in the event of an adverse determination at the 1368 proceeding.⁴ Appellant's answers to other inquiries were either nonresponsive or nonsensical; however, he did indicate his belief that there were no prisons existent in California anymore. Nonetheless, appellant did recall an incident “where [he] struck a deputy in the jail” and acknowledged that a criminal charge was pending against him. Appellant also demonstrated, upon cross-examination, his awareness of the purpose of the mental competence hearing.

The People placed primary reliance upon the psychiatric testimony of Dr. Richard Burdick. Burdick had several interviews with appellant during the period covering May 1977 to September 1978.⁵ Burdick expressed the opinion that appellant was mentally competent and that his bizarre behavior was a “contrivance.”⁶ In support of his position, Burdick pointed to the fact that appellant's presentation was too structured to truly indicate either organic deterioration or mental incompetence. Burdick also believed that appellant's infliction with Ganser syndrome was not “of such a debilitating nature that it would make him mentally incompetent.” He was of the opinion that “a good deal of what [appellant was] doing [was] being put on or feigned.” Burdick aired his opinion that appellant understood the nature of the courtroom proceedings which he was facing.⁷ Finally, Burdick indicated that “most of [appellant's] story is basically a sham but he is extremely good at what he does.” Upon cross-examination, Burdick testified believing that Dr. Kelly's conclusion was based “on a much lesser experience” than the interview he had with appellant.

The jury determined that appellant was mentally competent to stand trial.

EVIDENCE AT THE CRIMINAL TRIAL

Around 6:30 a. m. on the morning of June 26, 1978, Kern County Deputy Sheriff William Fisher was working as a booking officer in the county jail. He was processing certain prisoners for transportation to the state prison at Chino. Appellant was one of the prisoners scheduled to go to Chino and was in the general vicinity of Fisher's booking counter.

At one point, Fisher noted that appellant stepped out of the “court corridor cage,” a device used to contain the prisoners while their papers were being processed. Appellant apparently entered a “closing room” area which was off limits to the prisoners being processed. Fisher told appellant to go back to the court corridor. When appellant did not comply with this request, Fisher grabbed him by the arm and escorted him back to the court corridor area. Fisher instructed appellant to sit down, and he complied with this demand. Fisher then returned to the booking counter and proceeded to continue with his processing work.

Deputy Sheriff Milton McClanahan was the watch commander on the morning that Fisher was processing the prisoners' papers. At about 6:45 a. m. on the morning of June 26, McClanahan observed that appellant “was in the closing room and he should have been in the court corridor with the other trainees.” After McClanahan told appellant to get back where he belonged, appellant responded “that he was going home” and “that the judge [had] released him.” McClanahan convinced appellant that he was not going home and requested him to have a seat in the court corridor with the remainder of the inmates. Appellant laughed in a joking manner, started toward the court corridor area, and then stated to McClanahan, “Let me go over and talk to Officer Fisher.” McClanahan then testified, “I thought he was joking and I was laughing and joking with him and I says [sic], ‘Okay, I'll let you go over for a moment to talk to him.”’ The watch commander said that appellant walked over to Fisher and struck him. Fisher was wearing a regular sheriff's uniform at the time, which included a beige or tan-colored shirt and Kern County Sheriff's Department patches. Fisher was apparently knocked unconscious and crumpled to the floor beneath the booking counter. McClanahan then rushed to Fisher's assistance. He eventually pinned appellant against a nearby elevator cage and was soon assisted by other officers.

Fisher knew no reason why Buckner would assault him, since appellant had been friendly to the officer in the past except for a minor incident involving no physical threat.⁸ Fisher testified that he did not actually recall being hit; he merely remembered McClanahan telling him “to go seek medical attention up in the jail clinic.” Both Fisher and McClanahan testified that the booking officer sustained lacerations on his face and inside his mouth. Fisher stated that he harbored no particular ill will toward appellant prior to the present incident.

In his defense, appellant related a scenario about striking an extraterrestrial alien in the jail, which he believed to be a “control center.” Appellant stated that he had been kidnaped out of his own pharmacy and transported to the control center by some alien action. He also described an alien “build up” in Bakersfield which threatened the human race. According to appellant, he did not strike Officer Fisher, but an alien from a different planet who was wearing a beige sheriff's uniform and who had changed its body to duplicate the appearance of Fisher. Appellant identified a photograph of Fisher as the alien duplicate which he struck. Appellant said he struck Fisher because the duplicate had threatened “to kill off all my human element,” had shown “disrespect to a foster son of mine who had passed away,” and had threatened the life of appellant's “organization.”

The jury returned a verdict finding appellant guilty of having committed a battery on a peace officer.

I

As indicated hereinabove, appellant was found mentally competent to stand trial at a hearing which occurred 10 days before trial. Prior to the commencement of voir dire, however, appellant's counsel questioned appellant's mental competence. Counsel represented that he had difficulty conducting lucid conversations with appellant, that appellant did not recognize that prisons existed or understand the nature of the charges he faced, and that appellant made “other bizarre statements.” The court found appellant competent, and jury voir dire commenced. Following outbursts by appellant during voir dire, his counsel sought to hold another hearing for purposes of determining appellant's competence. The court entertained arguments by both sides on the propriety of ordering a new hearing pursuant to Penal Code section 1368. Based upon Dr. Burdick's pretrial psychiatric report and the courtroom conduct of appellant, the court ruled that appellant was mentally competent to stand trial and that he was feigning a delusion so as to avoid criminal proceedings. Notwithstanding the prior pretrial determination of competence, appellant now contends that the trial court erred in refusing to order another hearing on appellant's mental competence to stand trial. We are not persuaded.

Penal Code section 1368 provides that if, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of defendant, he shall state that doubt in the record and inquire of defense counsel whether in his opinion defendant is mentally competent; and at the request of defendant or his counsel or upon its own motion, the court shall recess the proceedings for as long as reasonably necessary to permit counsel to confer with defendant and to form an opinion as to his mental competence at that point in time. A hearing is then provided during which all criminal proceedings are suspended until the question of the present mental competence of defendant has been determined. (Pen. Code, § 1368, subd. (a)—(c).) A defendant is sane within the meaning of section 1368 if he is able to understand the nature of the proceedings taken against him and to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367; People v. Laudermilk (1967) 67 Cal.2d 272, 282, 61 Cal.Rptr. 644, 431 P.2d 228, cert. den. (1968) 393 U.S. 861, 89 S.Ct. 139, 21 L.Ed.2d 128.) Since the case at bar involves the propriety of a second competence hearing, this court's language from People v. Melissakis (1976) 56 Cal.App.3d 52, 62, 128 Cal.Rptr. 122, is pertinent:

“… we do not mean to suggest that the issue of present sanity cannot be resolved at a hearing prior to trial. Nor do we suggest that after a full pretrial hearing on the issue of present sanity the judge presiding at a defendant's trial may not rely at all upon a pretrial decision finding a defendant to be ‘presently’ sane in disposing of any subsequent motion for a further inquiry where the motion is not predicated upon a change of circumstances or new evidence. However, section 1368 of the Penal Code imposes upon the trial judge the duty, on his own motion, to inquire into the mental capacity of a defendant to stand trial whenever evidence presented during the trial or prior to sentencing raises a doubt in this respect. [[[[Citations.] Consequently, a trial judge may not avoid his own responsibility to make proper inquiry regarding a defendant's capacity to stand trial or to understand the nature of the sentencing procedure by relying solely upon a pretrial decision or pretrial psychiatric reports where, during the trial or prior to the sentencing, he is presented with a substantial change of circumstances or with new evidence which casts a serious doubt upon the validity of the pretrial finding of present sanity. [Citations.]” (Emphasis added; accord People v. Zatko (1978) 80 Cal.App.3d 534, 548, 145 Cal.Rptr. 643.)

Nonetheless, as with a defendant's burden in coming forward with substantial evidence of present incompetence in order to justify an initial hearing, there must be new evidence of substantial nature which casts a serious doubt upon the prior finding of competence. The necessary showing for a 1368 proceeding was well summarized in the case of People v. Laudermilk, supra, 67 Cal.2d at page 285, 61 Cal.Rptr. 644, 431 P.2d 228, which states, “[M]ore is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [[[[citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense [[[[citation].” (Accord, People v. Burney (1981) 115 Cal.App.3d 497, 171 Cal.Rptr. 329.)

Appellant does not challenge the jury's initial pretrial finding of mental competence. Instead, he argues that the trial judge should have conducted a second hearing on the issue based upon trial counsel's representation of incompetence and bizarre behavior. Laudermilk dispositively indicates that this will not entitle a defendant to a hearing under section 1368 as a matter of right.

Furthermore a review of the record confirms that there was no substantial change of circumstances or new evidence casting a doubt on the prior finding of incompetence. Appellant's counsel requested a second hearing on the basis of his inability to communicate with appellant and bizarre statements uttered by appellant. The court entertained further argumentation on this point, and appellant's counsel did not introduce any new evidence beyond the psychiatric reports at the prior hearing and appellant's strange behavior during jury voir dire. The judge then made a determination that appellant was “trying to con the court” and that he was feigning a “nonsensical” delusion “to attempt to not go to trial.” Since he was able to observe the demeanor of appellant, the trial judge was in the best position to determine whether appellant's conduct was self-serving and an attempt to feign an emotional disturbance. The court's reliance on the prior jury determination was not erroneous in the absence of proof indicating a substantial change of circumstances or new evidence which cast serious doubt upon the earlier finding. (Cf. People v. Cox (1978) 82 Cal.App.3d 221, 226-227, 147 Cal.Rptr. 73; People v. Zatko, supra, 80 Cal.App.3d 534, 548, 145 Cal.Rptr. 643.)⁹

Appellant's reliance upon People v. Melissakis, supra, 56 Cal.App.3d 52, 128 Cal.Rptr. 122 is misplaced under the circumstances of the instant case. First, the case is distinguishable on its facts. The trial judge in Melissakis discovered that two psychiatrists changed their opinion about appellant's competence after learning that he had a serious mental illness and that he suffered from an insane delusion after evidence presented at the guilt phase of the trial. Furthermore, the defendant's bizarre behavior corroborated that he had a mental illness. (Id., at p. 61, 128 Cal.Rptr. 122.) Unlike Melissakis, there was no change in the psychiatric testimony and the court determined that the bizarre behavior was a sham. Second, the present case involves representations of incompetence by trial counsel; in contrast, Melissakis involved a situation in which changed circumstances were revealed by the shift in psychiatric opinion and appellant's strange behavior during trial. Third, Melissakis did not foreclose a trial judge from placing reliance upon a pretrial finding of competence. (Id., at p. 62, 128 Cal.Rptr. 122.) The foregoing reasons render Melissakis inapposite.

Therefore, since there was no change of circumstances or new evidence casting serious doubt upon the validity of the jury's prior finding, we find it was not error to refuse to order a second hearing on appellant's mental competence to stand trial.

II

Appellant then contends that the trial judge erred in refusing to give instructions which dealt with circumstantial evidence and with the People's burden to prove appellant's knowledge of the peace officer status of the victim beyond a reasonable doubt. We are not persuaded.

It is clearly established that the instruction on circumstantial evidence (CALJIC No. 2.01) is unnecessary whenever the People do not “substantially rely” on such evidence and the proof as to the mental elements of the crime was presented predominantly through direct evidence. (See People v. Wiley (1976) 18 Cal.3d 162, 174-175, 133 Cal.Rptr. 135, 554 P.2d 881; People v. Flores (1981) 115 Cal.App.3d 67, 171 Cal.Rptr. 365; People v. Baldwin (1979) 97 Cal.App.3d 396, 401, 159 Cal.Rptr. 15, mod. 98 Cal.App.3d 533a.) The prosecution case here consisted almost entirely of eyewitness testimony, and the battery on Fisher was proven by the direct testimony of watch commander McClanahan. Under these circumstance, it would not have been instructive to admonish jurors on the effect to be given circumstantial evidence. No error was committed by the trial judge in so refusing the instruction.

Appellant also requested the trial court to instruct that “The prosecution in this case must prove a particular mental state beyond a reasonable doubt that is, that the person committing the offense knows or reasonably should know that the person struck is a peace officer and engaged in his duties.” The court refused this instruction, apparently reasoning that the particular mental state was covered in CALJIC No. 9.51 (which was eventually read before jurors). The record shows that the trial judge did instruct in the language of CALJIC No. 9.51 (definition of battery on a peace officer) and CALJIC No. 2.90 (presumption of innocence and reasonable doubt burden of proof). Appellant calls attention to no law stating that the trial judge has a sua sponte duty to focus jury attention upon the particular mental state for the crime involved here. Because the two instructions given by the trial judge adequately covered the legal point raised by appellant's proposed instruction, we find there was no error in refusing to read the desired admonition to jurors. (See People v. Welch (1972) 8 Cal.3d 106, 119-120, 104 Cal.Rptr. 217, 501 P.2d 225; People v. Baeske (1976) 58 Cal.App.3d 775, 781-782, 130 Cal.Rptr. 35.)

III

Appellant requested a reading of the following instruction (CALJIC No. 16.140), which stated, “Every person who, wilfully and unlawfully, uses any force or violence upon the person of another, is guilty of battery, a misdemeanor.” The court refused to give the full instruction. Instead, the trial court excised the words “a misdemeanor” and read this modified version of CALJIC No. 16.140 to jurors. In addition, the court admonished in the terms of CALJIC No. 16.141 (definition of force and violence for battery) and CALJIC No. 16.142 (battery not justified by insulting words). Furthermore, the court refused to provide verdict forms enabling jurors to find the appellant guilty of simple battery.

Appellant now contends that the excision from CALJIC No. 16.140 and failure to pass out verdict forms on the lesser included offense was equivalent to the withdrawal of instructions on a material defense. This argument is based on the premise that a mental element of battery on a peace officer—i. e., whether appellant knew or reasonably should have known that Fisher was a peace officer—was at issue. A reading of the lesser included instruction, argues appellant, could have resulted in a conviction for simple battery, rather than battery on a peace officer.¹⁰ On the other hand, the People contend that there was no factual basis for a proper reading of the simple battery instruction. We find there was no instructional error under the facts of the present case.

Penal Code section 243 states that battery on a peace officer occurs when the attacker knows or reasonably should know the victim is a peace officer engaged in the performance of his or her duties.¹¹ The People ask us to hold “that the mental state required by section 243 must be judged by an objective reasonable person standard, and that mental impairment, including intoxication or mental disorders not amounting to legal insanity, shall not relieve the attacker from responsibility for battery on a peace officer when the attacker reasonably should have known that the victim was a peace officer.” The Attorney General cites the cases of People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370 and People v. Whalen (1973) 33 Cal.App.3d 710, 109 Cal.Rptr. 282, as the legal authority for his argument. Although correctly ascertaining that an objective reasonable person test is applicable to section 243, Hood and Whalen cannot be read to preclude a defendant from showing that he did not reasonably know that the victim was a peace officer under circumstances where he was suffering from a severe and involuntary mental disorder.

In People v. Hood, supra, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, our Supreme Court held that a person who voluntarily becomes intoxicated should not escape the consequences of criminal responsibility for “assault with a deadly weapon on a peace officer or any of the lesser assaults included therein.” (Id., at pp. 458-459, 82 Cal.Rptr. 618, 462 P.2d 370.) Nevertheless, the court did not mention the additional mental knowledge required for assault on a peace officer (i. e., that a defendant “knows or reasonably should know” that his victim is a peace officer). (See People v. Finney (1980) 110 Cal.App.3d 705, 713, 168 Cal.Rptr. 80.) Moreover, the same court subsequently noted that Hood was principally based upon policy considerations relating to the effect of intoxication on human behavior. (See People v. Rocha (1971) 3 Cal.3d 893, 897-898, 92 Cal.Rptr. 172, 479 P.2d 372.) Subsequently, this court reconsidered language from Hood in the case of People v. Whalen, supra, 33 Cal.App.3d 710, 109 Cal.Rptr. 282. Although the defendant in Whalen claimed error in the failure to sua sponte instruct on voluntary intoxication in relation to assault with a deadly weapon on a police officer, we rejected such an argument in the following language:

“… appellant's contention that the court erred in failing to instruct on voluntary intoxication must be predicated on the assumption that nothing less than actual knowledge will suffice for the commission of an assault with a deadly weapon on a peace officer. This assumption, however, runs counter to the explicit language of Penal Code section 245, subdivision (b); the section states that the crime is committed if the person ‘knows or reasonably should know’ that his victim is a peace officer. Defendant's categorical assumption also thwarts the legislative purpose; the law was obviously adopted to discourage wanton attacks upon peace officers who are often called upon to risk their lives for the protection of society. To paraphrase the words of Mr. Justice Traynor in People v. Hood, supra, 1 Cal.3d 444, 458, it would be anomalous to allow evidence of intoxication, whether from the consumption of alcohol or drugs, to relieve a man of responsibility for viciously attacking a police officer with a deadly weapon when he reasonably should have known that the victim was a police officer; such crimes are frequently committed in just such a manner.” (People v. Whalen, supra, 33 Cal.App.3d at p. 717, 109 Cal.Rptr. 282, emphasis added.)

We then found that, under the facts of the case, Whalen should have known that he was pointing a gun at a police officer. (Id., at pp. 717-718, 109 Cal.Rptr. 282.) Thus, Whalen acknowledged that an objective reasonable person test was operative when dealing with assaults on a peace officer because of public concern for the safety of such individuals.

Recently, the Third District considered whether voluntary intoxication could negate the element that a defendant “reasonably should know” that his victim is a peace officer. Although dealing with the provision on assault (Pen. Code, § 245, subd. (b)), the Finney court held that voluntary intoxication was not relevant in negating the “reasonably should know” component of the offense. The court specifically stated:

“Penal Code section 22 has long provided that voluntary intoxication is no excuse to a crime except to negate particular mental elements of a crime such as purpose, motive, or intent. Since subdivision (b) of section 245, authorizes a defendant's conviction upon an alternate showing of culpable ignorance, i. e., that defendant ‘reasonably should know’ the officers' identities, defendant's unawareness of the officers' identities due to self-induced intoxication is immaterial when a sober person would have been aware of their identities. (See Wharton's Criminal Law, § 108, p. 64; 10 West's U.Laws Ann. (1974) Model Penal Code, § 2.08, subd. (2).) Such an objective standard does not rise to the level of the subjective mental elements set forth in Penal Code section 22. As a matter of public policy, defendant's voluntarily becoming intoxicated to the extent of his being unable to perceive the identities of uniformed peace officers driving marked patrol cars with lights and sirens operating is sufficiently culpable conduct to warrant criminal liability for the crime of assault with a deadly weapon on a police officer. (See Wharton's Criminal Law, supra.)” (People v. Finney, supra, 110 Cal.App.3d at pp. 713-714, 168 Cal.Rptr. 80, emphasis added, fn. omitted.)

The foregoing authority shows that voluntary intoxication is not relevant for purposes of negating the objective mental element of Penal Code section 243 (i. e., that defendant reasonably should have known that the victim was a peace officer). These cases evince a basic policy judgment that voluntary conduct such as intoxication should not excuse an assault or a battery on such important individuals as police officers. Nonetheless, the aforementioned precedents do not indicate that the mental knowledge required under Penal Code section 243 may not be prevented by the effect of certain severe and involuntary mental disturbances. In fact, one court has reasoned that the objective knowledge or awareness could be retarded by the effect of such specific mental diseases as epilepsy. (See People v. Glover (1967) 257 Cal.App.2d 502, 506, 65 Cal.Rptr. 219.)¹² Thus, we refuse to adopt completely the People's test with regard to section 243, since the ordinary reasonable person's knowledge of peace officer status may be justifiably retarded by severe, involuntary mental diseases or disorders. Under such circumstances, it would be unfair to subject an individual to the enhanced penalties for battery on a peace officer.

Nonetheless, we do not believe that the present appellant was entitled to an instruction on simple battery. As a threshold requirement to receiving a simple battery admonition in such a case, a defendant would have to present evidence of a severe, involuntary mental disturbance of a type which would preclude an objective person from perceiving that the victim was a peace officer. At his trial, appellant presented no psychiatric testimony establishing that he was inflicted with an involuntary mental disorder. Furthermore, he did not attempt to raise the insanity defense. The only indication that appellant had a mitigating excuse was revealed by his sometimes rambling, bizarre testimony. Nonetheless, no cognizable evidence showed appellant reasonably did not know that Deputy Fisher was a peace officer engaged in the performance of his duties. Instead, the record demonstrates the antithesis to be true. At the time of the incident, Fisher was wearing a sheriff's uniform. Fisher also grabbed appellant by the arm and escorted him away from an off-limits area after there was no initial compliance with his official command. Moreover, just prior to striking Fisher, appellant referred to him as “Officer Fisher.” (Emphasis added.) In the absence of a properly pleaded mental disturbance and under the facts of the present record, there was no evidence negating the objective element of knowledge set forth in Penal Code section 243. Thus, the trial court was not obligated to present instructions on simple battery.¹³

In conclusion, it appears that the jury rejected appellant's testimony, albeit bizarre, about striking an alien duplicate. The jurors were able to perceive his atypical behavior and evidently decided his conduct was not enough to negate the objective element of knowledge at the time he struck the officer, notwithstanding his subjective belief that Fisher was an alien duplicate. Otherwise, we believe they would have acquitted appellant.

The judgment is affirmed.

FOOTNOTES

1.  Specifically, trial counsel stated to the judge, “… not withstanding [sic] the jury verdict [that] Mr. Buckner is competent to stand trial, again I've had no lucid conversations with this individual, as far as recognizing the fact that prisons exist, that he still faces charges, along with other bizarre statements.”

2.  The court specifically stated that it was considering the reports of Dr. Kelly (defense psychiatrist) and Dr. Burdick (People's expert). The judge sustained appellant's objections to use of the reports by Dr. Matychowiak and Badgely.

3.  Specifically, Devenney said that appellant's “reaction to the underlying charge was that he was attacked and that he was hit over the head and his jaw was broken open and he somehow healed himself and that he has been embalmed and that he has had some sort of fluid running through his system.”

4.  At one point in his testimony, appellant stated:“Q You indicated that you knew that the jury was going to make a determination in this case, is that correct?“A Yes.“Q What is that determination going to be?“A My sanity and whether I am stable enough to stand trial.“Q So, you understand that there are charges or not?“A Right, yes.“Q Are there still charges pending against you?“A Well, there is a charge that the Honorable Judge Joseph Norwegian has to decide on on Tuesday and I have got to be cleared here by the jury whether or not I could stand trial and whether or not I am mentally able and mentally stable enough to stand trial.“Q What if they decide that you are not, then what happens?“A Then, I would be reprimanded (witness laughing) in a mental institution or to be—I would be ordered to be given psychiatric treatment until I was able to stand trial.”

5.  The most recent examinations by Burdick were made pursuant to superior court appointment.

6.  Burdick summarized his belief that appellant was engaging in a sham by stating, “I felt that he was being very manipulative. It just impressed me continually that this was a contrivance basically and whether it was a conscious contrivance or somewhat unconscious was not necessarily clear to me but it was obvious to me that it did not hold any of the characteristics of the productions of a true mental illness which, on the surface, seemingly are supposed to look and sound like.”

7.  In explaining appellant's frequent rambling answers to questions, Burdick opined, “… and I think that the times when it seems as if he is in disagreement as to what might happen or what the nature of what is going on really is that the difference has to do with his choice of words, which, when he is pushed to clarify those words, he generally would clear it up, discrepancies and speak our language so that I think that in every instance he clarified his appreciation of his own past behavior and the nature of the charges and proceedings and future potential for him.”

8.  In describing the prior minor incident, Fisher stated, “I ran out of spoons during feeding, I called down to the kitchen to get more spoons to be sent up. I went back to give [appellant] the spoon. He was eating with just a part of a spoon that had been broken. I started to hand him another spoon and he told me to shove it up my ass. And I just said okay and walked off.”

9.  Appellant urges that his defense testimony at trial should have compelled the trial judge to conduct a second hearing under section 1368. Although appellant's testimony is bizarre at times, the court continually indicated its belief that he was feigning incompetence. This factual determination adequately demonstrates why the court below did not hold an additional hearing.

10.  Although the trial judge did read CALJIC No. 16.140, we feel that his excision of the “misdemeanor” language (coupled with the failure to provide verdict forms) effectively impeded jurors from considering a simple battery conviction. Thus, with this premise in mind, we proceed to discuss whether the court erred by not clearly admonishing the jury about a lesser included offense.

11.  We note in passing that nothing in section 243 makes it inapplicable to peace officers of an extraterrestrial civilization.

12.  The People suggest that the reasoning in Glover was implicitly disapproved by the Hood decision. This contention is without merit. As noted earlier, Hood merely dealt with the voluntary conduct of a defendant who was intoxicated. The opinion did not discuss the relationship between involuntary mental disturbances and the objective reasonable person test contained in the provision dealing with assault on a peace officer.

13.  This is not to say that proof of a properly pleaded mental disorder supported by evidence could not negate the element that a defendant reasonably should know his victim was a peace officer in proper cases. (See People v. Glover, supra, 257 Cal.App.2d at p. 506, 65 Cal.Rptr. 219.)

ZENOVITCH, Acting Presiding Justice.

PAULINE HANSON and THOMPSON,* JJ., concur.