Duckett, In re

• Decision Date: 10 January 1978
• Docket Number: Cr. 17430
• Citation: 76 Cal.App.3d 692,143 Cal.Rptr. 100
• Court: California Court of Appeals Court of Appeals
• Parties: In re Otis DUCKETT, Jr., on habeas corpus.

Page 100

143 Cal.Rptr. 100

76 Cal.App.3d 692

In re Otis DUCKETT, Jr., on habeas corpus.

Cr. 17430.

Court of Appeal, First District, Division 1, California.

Jan. 10, 1978.

Hearing Denied March 9, 1978.

Jonathan S. Chasan, Berkeley, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Linda Ludlow, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Otis Duckett, Jr., was charged with several counts of assault with a deadly weapon. (Pen.Code, § 245.) Over a period of about 48 hours, responding to psychotic delusions, he appears to have shot three young college students. He was found not guilty by reason of insanity according to the procedures of Penal Code section 1026, and he was thereafter committed to a state hospital. After more than 90 days of such hospitalization, at a time when he had not recovered his sanity, proceedings were commenced on his behalf for parole into the public community, as conditionally permitted by Welfare and Institutions Code section 7375.

As relevant, Welfare and Institutions Code section 7375 provides:

"Whenever any such person has been confined in a state hospital . . . for 90 days or more . . . and the medical director of the hospital . . . is of the opinion that the person has improved to such an extent that he is no longer a danger to the health and safety of others and that the person will receive benefit from parole, the medical director may certify said opinion to the committing court . . . . Within 30 days after the receipt of the certification . . . the court shall, after a hearing in open court, approve or disapprove such recommendation." (Emphasis added.)

Following the required hearing the superior court disapproved the recommendation for Duckett's parole, and these proceedings in habeas corpus followed. Duckett seeks thereby an order "directing the trial court to grant said request for outpatient parole." The prayer will be denied for the reasons which we now state.

It is appropriate first to consider the public interest, in proceedings under Penal Code section 1026 and Welfare and Institutions Code section 7375.

In discussing the class of persons committed to a state hospital upon a Penal Code section 1026 finding of not guilty by reason of insanity, the state's high court in In re Franklin, 7 Cal.3d 126, 147, 101 Cal.Rptr. 553, 566, 496 P.2d 465, 478, stated: "(W)e agree . . . that 'The special interest which the public has acquired in the confinement and release of people in this exceptional class results from the fact that there has been a judicial determination that they have already endangered the public safety and their own as a result of their mental conditions as distinguished from people civilly committed because of only potential danger.' "

In the enactment of Welfare and Institutions Code section 7375 the Legislature has considered this special interest of the public. It has provided that there shall be no parole into the community, of persons found not guilty by reason of insanity and who have not recovered their sanity, except upon approval of the committing court, after a hearing.

Thus the principal, if not the only, issue of the judicial hearing required by section 7375 is whether the subject of the hearing "has improved to such an extent that he is no longer a danger to the health and safety of others . . . ." The ultimate responsibility for this grave determination is conferred upon the committing court, not upon the state hospital's medical director, or its staff.

At Duckett's superior court hearing the following factual context was developed.

Duckett's continuing mental illness was diagnosed as "schizophrenia, paranoid type." In "his case psychosis carries with it a definite danger of violent acting out of his delusions." He had an extensive juvenile history of "experimenting with drugs and getting into a delinquent crowd," and doing "time at Juvenile Hall for burglaries . . .." The episode leading to his instant commitment was, as we have indicated, the shooting of several college students; the shootings resulted from his psychotic delusions or hallucinations.

Medical experts from the state hospital first testified that Duckett "was no longer a danger to the health and safety of others." But on cross-examination, and from other evidence, it was established that he posed no danger to others "at this time." The reason was that "at this time" he was on "large doses" of "antipsychotic" medication. If the medication were to be stopped, "There's a strong indication" (from the hospital records) that the "delusions and hallucinations (which) caused the original offense" would return. When for some reason the medication had been interrupted at the hospital he "again developed (the) delusions and hallucinations." "But for this medication he would probably still be psychotic and in his case psychosis carries with it a definite danger of violent acting out of his delusions." "(W)ithout medication on two occasions (the hospital staff had) seen a reversion to thought processes similar to that at the time of the alleged crime." In recent conversations with Duckett one of the medical witnesses had observed no adverse "thought disorder," but he "could not state unequivocally that there is no evidence of the thought disorder"; at least there were "no strong indications of a thought disorder . . . ."

Duckett had signed a written agreement wherein he promised while on parole to keep weekly appointments with a designated "Penal Code Coordinator," to "continue receiving antipsychotic medication," and that "he will not keep firearms, that he will not use alcohol to excess, and that he will avoid the use of illicit drugs." Other evidence indicated that most psychotics such as Duckett, when left on their own, "stop their antipsychotic regimens" within a short time and that when they do "the symptoms may recur . . .." Indeed, one medical witness said: "There's a strong indication from our records" that if he (Duckett) stopped his medication a "strong possibility" existed of a resumption of the "delusions and hallucinations (which) caused the original offense . . .."

The "monitoring" of Duckett's required medication, as indicated, would be through his weekly visits to a "Penal Code Coordinator." A medical witness agreed that in his letter outlining the proposed parole arrangements, "there's no indication of anybody making sure that Mr. Duckett takes his Artane" (i. e., one of the required medications). The witness "assumed" that Duckett would continue with his medication while on parole; he was "theorizing that he'll go to Highland (Hospital) to take his medicine."

Duckett himself, although present, did not testify at the superior court hearing. Toward its close the following proceedings, among others, took place:

"Mr. Chasan (Duckett's attorney): Those are all the witnesses I have, your Honor.

"The Court: Thank you. Mr. Quatman, please.

"Mr. Quatman (district attorney): We have no witnesses, your Honor.

"The Court: Mr. Duckett, would you come forward and be sworn, please?

"Mr. Chasan: Your Honor, are you calling Mr. Duckett as a witness?

"The Court: Yes, that's why I'm asking him to be sworn, yes.

"Mr. Chasan: I do believe he has a Fifth Amendment right to refuse to testify.

"The Court: It's not a criminal proceeding, sir.

"Mr. Chasan: If that's the way you want to rule "The Court: Don't give me that stuff now. We're just talking it over. If you want to convince me otherwise, but it's even conceded that it isn't a 1026, it's down here to see whether he should be released. And if you're raising some issue now that he's got a Fifth Amendment privilege and you could be right. You want to tell me why?

"Mr. Chasan: Well, I think in any proceeding where Mr. Duckett is facing a continued further deprivation of his liberty, whether it's denominated civil or criminal, that the rights normally applicable in a criminal proceeding, including the Fifth Amendment, would apply.

"The Court: Is that the issue you raise?

"Mr. Chasan: Well, I'm raising it by way of an objection to his testifying.

"The Court: Fine, you may be seated.

"Mr. Chasan: Thank you.

"The Court: Anything further?

"Mr. Quatman: Nothing further, your Honor.

"The Court: Anything further?

"Mr. Chasan: Nothing further, your Honor.

"The Court: The request will be denied. That's all.

"Mr. Chasan: May I be heard?

"The Court: I've ruled. You certainly put on your evidence. I wanted to hear more. I heard the evidence. I wanted to hear more evidence. I don't want to hear any further argument, no. That's all."

I. We now consider Duckett's contention that he had a Fifth Amendment right not to be called as a witness at the hearing.

" 'The (Fifth Amend.) privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. . . .' " (In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527.) But the Supreme Court "has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action." (Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574.) " '(I)t protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could...