Cramer v. Tyars

• Decision Date: 12 January 1979
• Citation: 23 Cal.3d 131,151 Cal.Rptr. 653,588 P.2d 793
• Parties: , 588 P.2d 793 James M. CRAMER, as District Attorney, etc., Petitioner and Respondent, v. Luther TYARS, Objector and Appellant. L.A. 30918.
• Court: California Supreme Court

Page 653

151 Cal.Rptr. 653

23 Cal.3d 131, 588 P.2d 793

James M. CRAMER, as District Attorney, etc., Petitioner and Respondent, v. Luther TYARS, Objector and Appellant.

L.A. 30918.

Supreme Court of California, In Bank.

Jan. 12, 1979.

As Modified Feb. 21, 1979.

[23 Cal.3d 134]

[588 P.2d 794] Charles E. Ward, Public Defender, and Littleton M. Gunn, Deputy Public Defender, for objector and appellant

Paul Halvonik, State Public Defender, Gary S. Goodpaster, Chief Asst. State Public Defender, Paul D. Fogel, Quin Denvir and Richard E. Shapiro, Deputy State Public Defenders, as amici curiae on behalf of objector and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler, Jay M. Bloom and Cecilia H. Johnson, Deputy Attys. Gen., for petitioner and respondent.

RICHARDSON, Justice.

May a mentally retarded person who is the subject of a petition for civil commitment to the state Department of Health [588 P.2d 795] pursuant to former Welfare and Institutions Code section 6502 (all further statutory references are to that code unless otherwise cited) be called as a witness at the commitment hearing? We conclude that he may.

Preliminarily, we review certain provisions of sections 6500-6512 governing the commitment proceedings in issue. Section 6502 authorizes the verified petition for commitment be filed by the following: a parent, guardian, or other person charged with the support of the mentally retarded person, any district attorney or probation officer, the Youth Authority, any person so designated by the superior court in the county of the person's residence, or by the Director of Corrections. Mentally retarded persons are defined as those nonpsychotic persons "who are so mentally retarded from infancy or before reaching maturity that they are incapable of managing themselves and their affairs independently, with [23 Cal.3d 135] ordinary prudence, or of being taught to do so, and who require supervision, control, and care, for their own welfare, or the welfare of others, or for the welfare of the community" (§ 6500). Only those mentally retarded persons who constitute a danger to themselves or others can be committed to the Department of Health and the commitment is for one year's duration subject to renewal by the same petition process (§ 6500.1).

Upon the filing of such petition the matter is set for hearing. The alleged mentally retarded person must be notified of the hearing, and, if the petition is filed by a probation officer, district attorney, the Youth Authority, or the Director of Corrections, the person's parent or guardian also must be given such notice as is deemed proper by the court (§ 6504). Counsel must be furnished unless the person has his own attorney (§ 6500.1). At the hearing section 6507 directs the court to inquire into the "condition or status" of the alleged mentally retarded person and authorizes the court to invoke its subpoena power to require the attendance of medical specialists who have "made a special study of mental retardation," a clinical psychologist and such other persons "as it deems advisable, to give evidence." Finally, section 6509 governs placement procedures.

Against this statutory background we trace appellant's history. Tyars was born on February 12, 1957. At the time of the commitment proceedings under consideration he was almost 20 years old. Before 1965 he had lived with his mother in the Los Angeles area, and from 1965 to 1971 he was in a residential center in Ontario, California. In January 1971 Tyars was placed in the Patton State Hospital in San Bernardino County because of assaultive behavior against his family. Appellant has resided at Patton since that time.

On April 12, 1976, the District Attorney of San Bernardino County filed in the superior court of that county a petition for the commitment of appellant as a mentally retarded person pursuant to section 6502. The petition duly alleged the fact of Tyars' mental retardation and that he was a danger to himself or others. The court appointed a public defender to represent appellant and the matter was set for hearing. The court also granted appellant's request for trial by jury, required that any verdict be unanimous, allowed 13 peremptory challenges, and instructed the jury that it must find in favor of Tyars unless convinced of the truth of the essential allegations of the petition beyond a reasonable doubt.

[23 Cal.3d 136] Two medical examiners at the hearing diagnosed Tyars' condition as mental retardation encephalopathy caused by a postnatal injury. The experts described further medical findings: that he suffered from seizures which were controlled by use of

drugs such as dilantin, phenobarbital, and mysoline; that, depending on the measuring test used, Tyars' I.Q. was between 48 and 57, well below the average range of 90-110; and that he was incapable of functioning in a community without supervision. The examiners concluded that his mental defect is permanent and that he is a danger to himself or others. Evidence further adduced at the hearing established that appellant lacks communication skills and has a [588 P.2d 796] physical problem, a speech impediment diagnosed as "dysarthria," in which the muscles controlling speech do not permit the affected person to enunciate words clearly. A psychiatric technician at Patton State Hospital, describing appellant's assaultive behavior, testified that Tyars had often attacked other residents and staff members of the hospital, including the technician, using his fists, tables, cue balls, or cue sticks, causing personal injuries and property damage

At the hearing and over the objections of his counsel appellant was called as a witness pursuant to Evidence Code section 776 which provides for the examination of an adverse party in any civil action. The customary oath was not administered to him (he sat wherever it was comfortable for him in the courtroom) but the trial judge elicited a promise from him that he would tell the truth. The court expressly found that Tyars, while incapable of understanding the oath, did understand the obligation to tell the truth.

Because of his speech handicap Tyars had difficulty in making himself understood. The trial court thereupon caused an "interpreter" who was familiar with appellant's speech to be sworn to "translate English into English," i. e., to make his answers intelligible. The court's questions posed to Tyars were not restated by the interpreter; moreover, Tyars' understandable words were not always the same as those repeated by the interpreter who would either summarize Tyars' answer or simply answer the court directly. In substance, Tyars admitted several acts of violence including the throwing of chairs, "breaking someone's head wide open," and striking a hospital technician; he also named victims of other assaults and batteries and illustrated his testimony by swinging his arms in descriptive punching motions.

After 38 minutes of deliberations the jury returned its verdict finding that appellant was a mentally retarded person who is a danger to himself [23 Cal.3d 137] and others. The court thereafter ordered that he committed to the Department of Health for placement in a state hospital.

AVAILABILITY AS A WITNESS

The principal issue raised by appellant is the propriety of calling him, over objections, as a witness in his own commitment hearing.

We stress, preliminarily, the two separate and distinct testimonial privileges here involved. In a Criminal Matter a defendant has an absolute right not to be called as a witness and not to testify. (Amend. V of the U. S. Const. and art. I, § 15, of the Cal. Const. as codified in Evid. Code, § 930.) Further, in any proceeding, Civil or criminal, a witness has the right to decline to answer questions which may tend to incriminate him in criminal activity (Evid. Code, § 940). However, as we shall develop more fully, notwithstanding these privileges, no witness has a privilege to refuse to reveal to the trier of fact his physical or mental characteristics where they are relevant to the issues under consideration.

Several features of the applicable statutes (§§ 6500-6512) persuade us that commitment of mentally retarded persons must be deemed essentially civil in nature. The commitment is not initiated in response, or necessarily related, to any criminal acts; it is of limited duration, expiring at the end of one year and any new petition is subject to the same procedures as an original commitment (§ 6500.1); the petitioner need not be a public prosecutor, but may be any parent or other person designated by the court (§ 6502). The sole state interest, legislatively expressed, is the custodial

care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community. The commitment may not reasonably be deemed punishment either in its design or purpose. It is not analogous to criminal proceedings

The predominantly civil character of the proceedings created by sections 6500-6512 establishes that appellant did not have [588 P.2d 797] an absolute right, as does a defendant in a criminal action, not to be called as a witness and not to testify. (Black v. State Bar (1972) 7 Cal.3d 676, 685, 103 Cal.Rptr. 288, 499 P.2d 968; In re Vaughan (1922) 189 Cal. 491, 495-497, 209 P.2d 353; People v. Whelchel (1967) 255 Cal.App.2d 455, 460.) As expressed by the highest authority, the historic purpose of the privilege against being called as a witness has been to assure that the Criminal justice system remains accusatorial, not [23 Cal.3d 138] inquisitorial. (Malloy v. Hogan (1964) 378 U.S. 1, 11, 84 S.Ct. 1489, 12 L.Ed.2d 653; Murphy v. Waterfront Comm'n. (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678; Hoffman v. United States (1951) 341 U.S. 479, 485-486, 71 S.Ct. 814, 95...