People v. Burnett

• Decision Date: 27 January 1987
• Citation: People v. Burnett, 188 Cal.App.3d 1314, 234 Cal.Rptr. 67 (Cal. App. 1987)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert L. BURNETT, Defendant and Appellant. In re Robert L. BURNETT, On Habeas Corpus. A027817, A028806.

Page 67

234 Cal.Rptr. 67

188 Cal.App.3d 1314

PEOPLE of the State of California, Plaintiff and Respondent, v.Robert L. BURNETT, Defendant and AppellantIn re Robert L. BURNETT, On Habeas Corpus.

A027817, A028806.

Court of Appeal, First District, Division 2, California.

Jan. 27, 1987.

Cliff Gardner, Fiedler & Gardner, San Francisco, Cal., for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen San Francisco, Cal., for plaintiff and respondent.

KLINE, Presiding Justice.

This case pertains to the nature of the evidence a trial court must consider before determining whether a criminal defendant is competent to waive counsel and the standard by which that determination is to be made.

AppellantRobert L. Burnett was originally charged with four counts of fraudulent use of the credit card of another (Pen.Code, § 484f, subd. (2)) and one count of misdemeanor obstruction of a police officer.(Pen.Code, § 148.)The information also alleged he had suffered seven prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b).On April 20, 1981, the trial court found appellant not guilty by reason of insanity and committed him to Atascadero State Hospital pursuant to Penal Code section 1026"until restored to mental competence."Appellant's maximum commitment was not to exceed seven years and four months.

In May 1982, appellant filed an application under Penal Code section 1026.2 for restoration of sanity upon the ground that if released from the state hospital he"would no longer be a danger to the health and safety of others, including himself."(Pen.Code, § 1026.2, subd. (e).)A jury disagreed and the trial court ordered appellant returned to Atascadero.The order was subsequently affirmed by this court in an unpublished opinion.

The instant proceeding commenced when, a year after his first application, appellant again petitioned for release pursuant to Penal Code section 1026.2.This time appellant waived his right to counsel and elected to represent himself.The trial court inquired into appellant's knowledge of certain basic legal principles and advised him of the hazards of self-representation.However, the trial court did not require expert evidence regarding appellant's mental capacity to waive counsel and represent himself.At the actual trial, after appellant presented a single witness who had no knowledge of his mental capacity, the trial court granted the People's motion for a directed verdict and subsequently ordered him "returned to Atascadero State Hospital for further care and treatment."

We reverse on the grounds that the trial court failed to properly determine whether appellant should have been permitted to proceed to trial without counsel.

I.

The fountainhead of the right we focus upon in this case is, of course, Faretta v. California(1975)422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, in which the Supreme Court held that a defendant in a state criminal proceeding has a federal constitutional right to represent himself when he voluntarily and intelligently elects to do so.

Applying Faretta, the California Supreme Court has stated that "when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be."(People v. Windham(1977)19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187, cert. den., 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116.)The manner in which a trial court should make the necessary ascertainment was first explored in People v. Lopez(1977)71 Cal.App.3d 568, 138 Cal.Rptr. 36.Writing for the court in Lopez, Presiding Justice Gardner divided the judicial enterprise into three general categories."First, it is necessary, as Faretta says, that the defendant'be made aware of the dangers and disadvantages of self-representation.'... Second, ... it would certainly be advisable to make some inquiry into his intellectual capacity to make this so-called 'intelligent decision.'[and] ... Third, he should definitely be made aware that in spite of his best (or worst) efforts, he cannot afterwards claim inadequacy of representation."(Id., at p. 572-574, 138 Cal.Rptr. 36.)

It is the second of these three "categories"--the inquiry into "intellectual capacity" --that most concerns us in the instant case.¹With respect to this matter, the opinion in Lopez states, inter alia, as follows: "If there is any question in the court's mind as to a defendant's mental capacity it would appear obvious that a rather careful inquiry into that subject should be made--probably by way of a psychiatric examination.It would be a trifle embarrassing to get half way through a trial only to discover that a court has determined that a mentally deficient or seriously mentally ill person has been allowed to make a 'knowing and intelligent' decision to represent himself."(Id., at p. 573, 138 Cal.Rptr. 36.)

People v. Teron(1979)23 Cal.3d 103, 151 Cal.Rptr. 633, 588 P.2d 773[disapproved on other grounds inPeople v. Chadd(1981)28 Cal.3d 739, 750, fn. 7, 170 Cal.Rptr. 798, 621 P.2d 837] was the next important case to address the question whether psychiatric evidence is necessary in order to establish whether a person is mentally competent to represent himself.The defendant in that case argued that the trial court should not have permitted him to represent himself without first obtaining a psychiatric evaluation.The court agreed with the statement in Lopez, just quoted, that a psychiatric examination should "probably" be made "[i]f there is any question in the court's mind as to a defendant's mental capacity...."(Teron, supra, 23 Cal.3d at p. 114, 151 Cal.Rptr. 633, 588 P.2d 773, quotingLopez, supra, 71 Cal.App.3d at p. 573, 138 Cal.Rptr. 36.)However, the court ruled that the trial court's failure to order a psychiatric examination in connection with the Faretta hearing was not an abuse of discretion because at the time of that hearing the evidence before the court did not include any discernible facts "which might create a question concerning the possibility of mental illness."(Teron, supra, 23 Cal.3d at p. 114, 151 Cal.Rptr. 633, 588 P.2d 773.)

In People v. Wolozon(1982)138 Cal.App.3d 456, 188 Cal.Rptr. 35, this court held that a defendant was not automatically deprived of the right to represent himself in a proceeding under Penal Code section 1026.5 to extend his commitment to a state hospital or other treatment facility.Even though the defendant might be insane in the sense that he is a danger to himself or others, he could still be competent to waive his right to an attorney.We indicated, however, that when such competence is in issue relevant psychiatric evidence should be considered.The determination of competence to waive counsel cannot be based solely on mental evaluations directed to the issue of whether the defendant constitutes a danger to others.(Id., at p. 461, 188 Cal.Rptr. 35.)Recognizing that a fundamental liberty interest is at stake in a 1026.5 proceeding, we held in Wolozon that "in a hearing to extend commitment under section 1026.5, the person committed to the state hospital has a right to confront and cross-examine psychiatrists and psychologists testifying against him.This ruling applies both to the case-in-chief and any pretrial hearing concerned with the person's knowing and intelligent waiver of his right to counsel."(138 Cal.App.3d at p. 462, 188 Cal.Rptr. 35, italics added.)

Lopez, Teron, and Wolozon essentially stand for the proposition that whenever a trial court has doubt as to the competence of a defendant to exercise the right of self-representation the court must undertake an exceedingly careful inquiry into the subject, ordinarily by ordering a psychiatric evaluation.

Such a rigorous pretrial inquiry is fully consistent with federal practice under the Sixth Amendment.Thus, for example, in Von Moltke v. Gillies(1948)332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, Justice Black declared that a judge inquiring into the validity of a defendant's waiver of counsel"must investigate as long and as thoroughly as the circumstances of the case before him demand. ...A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.[p] ...[A] mere routine inquiry--the asking of several standard questions followed by the signing of a standard written waiver of counsel--may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel."(Id., at pp. 723-724, 68 S.Ct. at p. 323;accord, Johnson v. Zerbst(1938)304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461;Westbrook v. Arizona(1966)384 U.S. 150, 151, 86 S.Ct. 1320, 16 L.Ed.2d 429;see also, Pate v. Robinson(1966)383 U.S. 375, 385-386, 86 S.Ct. 836, 842, 15 L.Ed.2d 815.)With this principle in mind we turn to the case before us.

In determining that appellant was mentally competent to waive counsel and represent himself, the trial court considered only the behavior of appellant at several pretrial hearings and the arguments of counsel.The failure of the court to obtain a psychiatric evaluation or any other independent evidence bearing upon appellant's mental capacity must be deemed to show either that the court never doubted appellant's mental capacity--which seems to us inexplicable in light of appellant's behavior--or that it overcame such doubt as it may initially have entertained without the benefit of psychiatric evidence.

Entirely apart from the fact appellant was and for several years had been confined in a state mental facility, the two very brief hearings at which his competence to waive counsel was...