PEOPLE v. PATRICK (1981)

OPINION

Following a trial for violation of Penal Code section 288,¹ appellant was acquitted by reason of insanity. (§§ 1026 and 1026a.)² He appeals from a commitment to the California Department of Health pursuant to section 1026 for placement in a state hospital following a finding that he had not recovered his sanity and was still a danger to himself and others. We reverse the order of commitment (only).

Sometime after May 15, 1977, appellant was charged with a violation of section 288 (touching an eleven-year-old girl on her breasts) and other offenses not relevant because of dispositions favorable to him. Proceedings were suspended because he was found incompetent to stand trial under section 1367 et seq.³

After a commitment to Atascadero State Hospital on July 18, 1977, he was returned certified competent to stand trial on or about April 26, 1978.⁴ The report accompanying the certification describes appellant as a “chronically ill man” with a diagnosis of “schizophrenia, chronic undifferentiated type.”

Between the April date and his commitment on September 11, 1978, there were the usual procedural steps, plus a couple of missteps, which are set forth in the margin.⁵ Appellant spent these five months in jail. By the September hearing date, his mental status had regressed. This is not a unique phenomenon; experienced members of the criminal bar and bench have observed it numerous times. Jails are stressful places and psychotics⁶ do not handle stress well.⁷

It is the nature of appellant's deterioration and its effect upon the September 11, 1978, proceedings which forms the crux of this appeal.

Appellant contends “During the pendency of the instant case, substantial evidence came before the trial court, which at the very least, should have raised a doubt in its mind as to whether the appellant was presently competent.” Appellant complains that despite this evidence, the trial court failed to initiate an inquiry into appellant's present mental competence at the September 11, 1978, hearing, as mandated by section 1368,⁸ and therefore appellant's commitment should be reversed.

Appellant cites the following as constituting substantial evidence of appellant's incompetence:

“(1) In 1977 two Court appointed psychiatrists had determined that appellant was incompetent to stand trial.

(2) Those medical reports detail a long history of severe mental disturbance in Mr. Patrick.

(3) Mr. Patrick's demeanor and behavior before the court. Specifically at the hearing on September 11, 1978, Mr. Patrick, in a rambling and at times incoherent statement, informed the court that when he pled not guilty by reason of insanity he did not really understand the nature of his plea.

(4) And finally there is Dr. Thieman's report. Pursuant to a Court order, Dr. Thieman reexamined Mr. Patrick on August 18, 1978. In pronouncing the appellant present [sic] insane, the Dr. noted that Mr. Patrick did ‘not understand the seriousness of the offense and it is rather doubtful whether he could cooperate in a meaningful fashion with his attorney.”’ (Emphasis appellant's.)

There was no manifestation of an inability to understand the proceedings or cooperate with counsel until the September 11 hearing.⁹

Although appellant's counsel never expressed doubt about appellant's ability to understand the proceedings or assist in his defense, it is argued that the court had a sua sponte duty to express a doubt and institute section 1368 proceedings once again to determine present mental competence.¹⁰

Since the appellant's statements at the hearing on September 11, 1978, are relied upon, they are set forth in the margin.¹¹

When there is substantial evidence of present mental incompetence, a defendant is entitled to a present mental incompetency (§ 1367 et seq.) hearing as a matter of right; the trial judge is completely without discretion no matter how persuasive other evidence may be to the contrary. (Pate v. Robinson, supra, 383 U.S. 375, 385-386, 86 S.Ct. 836, 15 L.Ed.2d 815; People v. Pennington, supra, 66 Cal.2d 508, 516-519, 58 Cal.Rptr. 374, 426 P.2d 942.) The substantial evidence test is satisfied “If a psychiatrist or qualified psychologist … 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, …” (Id., at p. 519, 58 Cal.Rptr. 374, 426 P.2d 942.)

Although Dr. Thieman did not testify under oath, his report was submitted to the court with a waiver of his presence. This is the equivalent of in-court testimony. The statement of the psychiatrist that “… Mr. Patrick does not understand the seriousness of the offense …” is not a statement that he is incapable of understanding the purpose or nature of the criminal proceedings. The statement that “… it is rather doubtful whether he could cooperate in a meaningful fashion with his attorney,” although a bit timorous, is sufficiently strong to constitute substantial evidence, especially under Pate.

Bizarre actions or statements, standing alone, are not sufficient to trigger a sua sponte duty to institute section 1368 proceedings. (People v. Laudermilk (1967) 67 Cal.2d 272, 285, 61 Cal.Rptr. 644, 431 P.2d 228; People v. Burney (1981) 115 Cal.App.3d 497, 503, 171 Cal.Rptr. 329.) However, a defendant can act in such a grotesque way that his actions, coupled with an alienist's opinion that the defendant was laboring under a “delusional system” and was not capable of trusting another person sufficiently to present an adequate defense, does constitute substantial evidence of present insanity. (People v. Melissakis, supra, 56 Cal.App.3d 52, 56, 60, 128 Cal.Rptr. 122.)

All of the pertinent evidence before the trial court should be examined. (People v. Laudermilk, supra, 67 Cal.2d 272, 286, 61 Cal.Rptr. 644, 431 P.2d 228.) In the instant case on September 11, 1978, the court was confronted with a defendant who had spent most of the last seven years in mental institutions. A current report from a psychiatrist expressed doubt that the appellant could cooperate with his attorney. This was buttressed by the inappropriate statements of appellant at the September 11, 1978, hearing. The three taken together constituted substantial evidence of incompetence and were sufficient to create a sua sponte duty on the trial court to declare a doubt as to present mental competence (§ 1368).

A commitment pursuant to section 1026 is not specifically mentioned in sections 1367 and 1368. However, since the former states that “A person cannot be … adjudged to punishment while he is mentally incompetent,” and the latter states 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 the defendant, …” it is reasonable to interpret such a commitment within the statutory proscription.

The defendant in a criminal cause has the right to be personally present. (Cal.Const., art. I, § 15.) He is not “present” unless he is mentally as well as physically present. (People v. Berling (1953) 115 Cal.App.2d 255, 267, 251 P.2d 1017.)

People v. Pennington, supra, 66 Cal.2d 508, 521, 58 Cal.Rptr. 374, 426 P.2d 942, stated that when there is substantial evidence of present mental incompetence “… the trial court has no power to proceed with the trial ․ In trying defendant without first determining at a hearing his competence to stand trial, the court both denied to defendant a substantial right [citations] and pronounced judgment on him without jurisdiction to do so․”

In our case, the trial was conducted during the appellant's mental competency, as were all other procedures up to the date set for the determination of whether the appellant was post-acquittal (§§ 1026-1026a¹² ) insane, at which time there was substantial evidence of present mental incompetence (§ 1367 et seq.). The trial court committed the appellant to the California Department of Health for placement in the state hospital (Atascadero) pursuant to sections 1026 and 1026a.

The issue is apparently one of first impression. The appellant would have been committed to Atascadero had he been found incompetent to stand trial for lack of capacity to consult with counsel or to comprehend the proceedings (§ 1367 et seq.). Instead, he was sent to the same hospital as post-acquittal (§§ 1026-1026a) insane. A proper inquiry to determine whether the error was prejudicial is whether his stay in Atascadero would be longer or his treatment while there any different. Another appropriate inquiry, assuming he was incompetent at the time of the September 11, 1978, hearing, is whether the appellant could have assisted his counsel there had he been competent.

Persons who are committed to Atascadero State Hospital pursuant to section 1367 et seq. are segregated from the other patients at Atascadero because of different treatment goals.¹³ Since the object is to have the patient obtain a level of understanding about criminal procedures and the necessity of cooperating with one's attorney, an individual could be returned competent to stand trial and at the same time be a danger to himself or others.

Ninety days after a commitment, if the defendant has not already been certified as restored to competence, but there is a strong likelihood that he will recover in the near future, he remains in the facility, and thereafter at six-month intervals or until mentally competent, the supervisor of the facility must report about the defendant's progress. If after eighteen months he is still hospitalized pursuant to section 1370, he must be returned to court for another 1369 hearing. The burden of proof under section 1369 is on the prosecution. If he has remained in the hospital for three years (or a shorter time, see § 1370, subd. (c)(1)) he shall be returned to court for possible conservatorship proceedings, with discretionary dismissal of the criminal action.

Sections 1026 and 1026a, as they read in 1978, may be summarized as follows: Unless the trial court finds that the person acquitted by reason of insanity has fully recovered his sanity, that person must undergo confinement in a state hospital or other mental health facility or must undergo outpatient treatment for a minimum period of 90 days prior to any further hearing regarding the restoration of his sanity. Thereafter, a release hearing may be held upon the application of the superintendent of the hospital or other facility, or upon the application of the patient himself, with the burden on the applicant to prove restoration of sanity. If the application is denied, a new application may be filed following the expiration of one year from the date of the last hearing. “Sanity” as used in sections 1026 and 1026a means that the person has improved to the extent that he is no longer a danger to the health and safety of others, including himself. (In re Franklin (1972) 7 Cal.3d 126, 145, 101 Cal.Rptr. 553, 496 P.2d 465.)

As can be seen from the above, a court has several options after making a finding of post-acquittal (§§ 1026-1026a) insanity, which include, except for enumerated crimes not relevant here, other public or private hospitals or outpatient treatment. It seems apparent that a defendant who could cooperate with his attorney might assist himself in several respects. He could attempt to marshal assets to make financial arrangements for a commitment to a private institution. He could cooperate in securing a report from a different alienist. He could take the stand and testify or in some other way address the court as to his plans if given outpatient treatment. He could try to convince the court that he is not presently a danger to himself or others.¹⁴

We are aware that these options are open to a judge under section 1370. However, the chance of a defendant convincing a court to institute them in a felony proceeding is remote if he is so deranged that he cannot cooperate with counsel or understand the nature of the proceedings.

Still another difference between commitment pursuant to section 1370 and commitment under sections 1026 and 1026a is the requirement that once an application for release under the latter sections is denied, there is a one-year waiting period before a new application may be filed by the defendant. An additional dissimilarity arises from the fact that the burden of proof under section 1369 is on the prosecution; under section 1026a it is on the applicant.

It follows that we must reverse the order of commitment. As is made clear in Pate v. Robinson, supra, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 and People v. Pennington, supra, 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942, it is impractical to remand for a limited hearing as to appellant's mental incompetence at the time of the September 11, 1978, hearing. A jury trial is available, but the jury would not be able to observe the subject of their inquiry. Any additional expert witness would have to testify solely from information contained in the printed record. It is simply impossible to make a retrospective determination of appellant's mental competence at the September 1978 hearing.

The disposition herein makes moot the issue of whether appellant is entitled to good-time/work-time credit.

The judgment of conviction is affirmed; the order of commitment (only) is reversed and remanded with the direction to vacate said order of commitment entered after the September 11, 1978, hearing, and to conduct proceedings pursuant to section 1367 et seq.

I concur in the judgment. I especially disagree with the suggestion in footnote 7 of the principal opinion that the trial court appoint a mental health professional to monitor a defendant in jail to assure appropriate medication is given to him. In my opinion, it is inappropriate and not within the competence of this court to suggest the employment of persons by the trial court whose employment has not been authorized or directed by the state Legislature or authorized by local legislative bodies.

I concur in the opinion as to affirming the judgment of conviction, but respectfully dissent from that portion of the opinion reversing the order of commitment.

It is not our role on appeal to reweigh the evidence. The record supports the trial judge's decision to commit appellant under Penal Code section 1026; there was no abuse of discretion. I do not agree that as a matter of law the trial judge was required to proceed under Penal Code section 1368.

FOOTNOTES

1.  All statutory citations are to the Penal Code.

2.  Appellant pled not guilty and not guilty by reason of insanity. After appropriate waivers, the matter was submitted on the preliminary transcript on the guilt phase and on the written reports of Dr. Davis, dated June 22, 1977, and Dr. Thieman, dated July 5, 1977, on the insanity phase. The court found appellant guilty of violating section 288, but not guilty by reason of his insanity at the time the offense was committed.

3.  Section 1367 provides:“A person cannot be tried or adjudged to punishment while he is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, he is unable to understand the nature of the proceedings taken against him and to assist counsel in the conduct of a defense in a rational manner․” (Emphasis added.)Although the Legislature used the conjunctive “and,” rather than the disjunctive “or,” it is probable that this is an oversight, since state and federal cases have used the disjunctive. (See Pate v. Robinson (1966) 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; People v. Pennington (1967) 66 Cal.2d 508, 518, 58 Cal.Rptr. 374, 426 P.2d 942; People v. Melissakis (1976) 56 Cal.App.3d 52, 61, 128 Cal.Rptr. 122; Keene, Cal. Criminal Trial Judges Benchbook (1980) p. 129.)

4.  Because there were two files below (see fn. 5, infra), the certification of sanity issued by the medical director of the Atascadero State Hospital dated April 20, 1978, is not a part of the record. Respondent requested that we take judicial notice of it. During oral argument counsel for appellant gave his consent for the report to be considered on appeal, but expressed the reservation that the record show that it was before the trial court below. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493, 138 Cal.Rptr. 828.) We have found references to 1368 proceedings six times and to the Atascadero report three times in the record. It is obvious that Judge Allen was cognizant of the fact that the appellant had been certified section 1368 incompetent and that he had been returned under a section 1372 certificate.

5.  4/20/78—Appellant was certified mentally competent by the medical director of Atascadero State Hospital.4/26/78—Appellant returned to Tulare County to stand trial on or about this date. Unknown Date—995 motion granted in case No. 18215.5/25/78—Preliminary hearing held; appellant held to answer on two counts. (§§ 288 and 459.)6/7/78—Two-count information No. 18797 filed.6/8/78—Arraignment—not guilty pleas entered. (Appellant did not speak at this hearing.)7/28/78—Public defender entered additional plea of not guilty by reason of insanity; guilt phase submitted on preliminary hearing transcript; sanity phase on doctors' reports in previous case. Appellant has extended conversation with court, all responses appropriate.8/7/78—Trial; matter submitted on guilt phase without argument and submitted on section 1026 stage after argument. No comments by appellant at this hearing.8/14/78—Appellant found guilty on 288 charge, not guilty on 459 charge; appellant further found to be insane at time of commission of offense. Matter referred to probation for supplemental report and sentencing set for September 11, 1978. Appellant does not speak during hearing.8/18/78—Appellant appears before Judge Conn; court orders an evaluation of appellant by Mental Health prior to September 11, 1978, sentencing date. Appellant converses with Judge Conn. He presented himself adequately.8/28/78—Dr. Thieman examines appellant.9/7/78—Dr. Thieman files report recommending appellant be found presently legally insane and be remanded to Atascadero.9/11/78—Appellant found not fully recovered of his sanity and remanded to Department of Health. Appellant rambles extensively in conversation with court.

6.  Approximately 90 percent of the patients discharged from Atascadero in 1978 pursuant to section 1372 had a diagnosis of schizophrenia, paranoid type. (Pendleton, Treatment of Persons Found Incompetent to Stand Trial (Sept. 1980) Am.J.Psychiatry 137:9, pp. 1098-1099.)

7.  In view of the fragile nature of defendants who have been returned from Atascadero pursuant to section 1372, it would be prudent for trial courts to expedite the proceedings and to insure that the defendant is not regressing. In those counties where it is not already done, we suggest the court have a mental health professional monitor the defendant in jail to observe the defendant and to insure that appropriate medication is being given and taken. If he appears to be deteriorating, the professional could strengthen or change the medication or assist through counseling or other psychotherapeutic techniques. The cost of such preventative measures might be significant, but presumably less costly than treating the sequela after the defendant has again become incompetent to stand trial.

8.  Section 1368 states, in pertinent part:“(a) 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 the defendant, he shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.“(b) If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court․”

9.  Although appellant told the court “I have been in custody seven years, …” at an August 18, 1978, hearing, when in fact he had been in Atascadero on his last commitment for less than a year, he had been hospitalized nearly continuously since 1971 at either Atascadero State Hospital or Camarillo State Hospital and was in jail most of the time he was not hospitalized. It is thus seen that his statement regarding being in custody seven years is accurate.

10.  The matter is jurisdictional and cannot be waived by a defendant or his counsel. (In re Davis (1973) 8 Cal.3d 798, 808, 106 Cal.Rptr. 178, 505 P.2d 1018.)

11.  Just prior to the court's finding, appellant was permitted to make the following statement:“DEFENDANT PATRICK: … Your Honor, about eight years back, 19—about 1970, I had a civil problem with my wife. She—whe [sic] had just come into California. And I had lived in California all of my life. But dad worked for an air craft company, but he didn't drive. He did drink. I don't drink myself.“And we got a civil problem at my house. My wife and brother were together, you know. So what took place was the fact we had an argument that [led] to a fist fight. And then I went to jail over a self problem. And there was a fellow in jail who said plead not guilty by reason of insanity. So I did it.“So I have been in custody actually six years trying to get back to my job and my son. My son is ten years old now. He was two at the time. I have been in custody eight years trying to get back because every—every—every time I leave the Visalia County Jail, Tulare County Sheriff comes right after me and picks me up on the street before I can get to my home.“Every time I leave, he picks me up right on the street and says to me, says, well we are going to take you back. I say what for, you know. And it was actually a civil problem. And I am not guilty. I am not insane. And I have been on all types of medications, prescribed by doctors.“I went—I spent two years in Napa, year in Boumount, a year in Bakersfield, Pioneer Community, several times in Tulare View, three times in Atascadero and there is one other place that I spent some time was Boumo [ [ [ [u]nt that there was a home in Boumount for mentally retarded children. And I counseled out there.“I worked in some of the work in some of the counseling session[s]. I have tried to finish my education, all within the time I had eight in jail and working during the day.“I haven't done too much manually per se, I haven't been able to have that privilege to get out and find a job according.“THE COURT: Is there any comment by the People?“MR. VAN AUKEN: Your Honor, the People would submit it based on the three reports.“THE COURT: The Court is assuming that both [pa]rties have waived, having the presence of the doctors here?“MR. VAN AUKEN: So waived, your Honor.“MR. WILSON: Yes, your Honor.“THE COURT: Regarding this report dated August 28th.“MR. WILSON: That is correct.“THE COURT: Are there any other comments?“MR. WILSON: No, your Honor. We'd submit it.”Later the court asked appellant if he had any questions and the following colloquy occurred:“DEFENDANT PATRICK: Yeah, which hospital would it be?“THE COURT: Probably be Atascadero, Mr. Patrick. There are v[i]rtually no others.“DEFENDANT PATRICK: How long will it be before I was transported down there?“THE COURT: Probably be within 48 hours.“…“DEFENDANT PATRICK: I spent three years down there every time I asked when, you know, like the medication I'd have good, real long spell of real good time, your know. And then I'd ask—I'd say what about I going back standing trial. They say we have to wait on the paperwork and we will put it off.“And I stay another three or four months. I had go it quarterly every year I'd see them four times a year. And they'd say well, we'd have to—we'd have to see about the paper work. We have to wait on the paperwork is what they tell me.“THE COURT: Well I understand that they do have to furnish the Court periodically with reports on your progress.“DEFENDANT PATRICK: I see.“THE COURT: Once they make a determination, it is at Atascadero that you recover your sanity, you have to be within a very short time [taken] back to this Court for any further proceedings.“DEFENDANT PATRICK: All right.“THE COURT: And it is also my understanding, I believe, that he does have this credit for time that he served at Atascadero against any sentence if he does recover.“MR. WILSON: Well, he is not guilty at this point by reason of the court order so it is matter of recovering as soon as that is done, he would be eligible for release or out patient status depending—“DEFENDANT PATRICK: I have got twenty months at Atascadero waiting on this offense right now. I spent a year—I have twenty months in. And I suppose too—we regained my sanity I am medicating and when I try at the talk, it is—it doe[sn't] come out exactly what everybody wants to hear sometimes.“THE COURT: Well, their determination as to when you have recovered sanity at all is basically up to them. They could make such a determination four months from now, it might be many months from now before they make such a determination.“DEFENDANT PATRICK: What they can do was say I was sane after I had been down there three times both at Boumount and Pioneer Community. After I had attended Exeter High School, I was employed by Waterman Industries in Exeter. I worked—I worked for Waterman's a year and I worked for Cameron Homes a year I was junkman starting out and I had two years on the job. And this one fellow told me [to] plead not guilty by reason of insanity, I don't know what the plea even was at the time. So I entered the plea and later on it come to be something really way out there, you know.“THE COURT: Well, you do understand once they make a determination at Atascadero that you have recovered your sanity that you must immediately be brought back to the Court for final disposition of this matter then.“DEFENDANT PATRICK: All right.“MR. WILSON: Ok.”

12.  Section 1026a was amended in 1979 and renumbered 1026.2. We will use the prior designation.

13.  See the Program Statement for Program II of the hospital. Also see Pendleton, Treatment of Persons Found Incompetent to Stand Trial, supra, Am.J.Psychiatry 137:9 at pp. 1098-1100 for a description of the program.

14.  For due process considerations, the test of competence varies with the nature of the proceeding and the gravity of the decisions which face a defendant. (de Kaplany v. Enomoto (9th Cir. 1976) 540 F.2d 975; Chavez v. United States (9th Cir. 1981) 641 F.2d 1253.)

ANDREEN, Associate Justice.

GEO. A. BROWN, Presiding Justice, concurring.PAULINE DAVIS HANSON, Associate Justice, concurring and dissenting.