People v. Burnick

• Decision Date: 15 May 1975
• Docket Number: Cr. 16554
• Citation: 121 Cal.Rptr. 488,14 Cal.3d 306,535 P.2d 352
• Court: California Supreme Court
• Parties: , 535 P.2d 352 The PEOPLE, Plaintiff and Respondent, v. Charles R. BURNICK, Defendant and Appellant.

Page 488

121 Cal.Rptr. 488

14 Cal.3d 306, 535 P.2d 352

The PEOPLE, Plaintiff and Respondent, v. Charles R. BURNICK, Defendant and Appellant.

Cr. 16554.

Supreme Court of California,

In Bank.

May 15, 1975.

Rehearing Denied June 11, 1975.

Barry David Kohn, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., and Herbert L. Ashby, Chief Asst. Attys. Gen., William E. James, Asst. Atty. Gen., William R. Pounders and Joel S. Moskowitz, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Professor Wigmore perceptively observes that 'The mental condition of one whose mind is so deranged as to require imprisonment for his own and others' good is indeed pitiable. But the mental attitude of one who is falsely found insane and relegated to life imprisonment is beyond conception. No greater cruelty can be committed in the name of the law.' (5 Wigmore on Evidence (Chadbourn rev. 1974) § 1400, p. 201.)

Surely it is no less cruel to falsely find a man to be a 'mentally disordered sex offender' and confine him indefinitely in a prison-like state mental institution. Against such grievous errors the law has erected sturdy bulwarks of procedure. In the quoted paragraph, for example, Professor Wigmore stresses the importance of the right of confrontation. No less critical is the standard of proof--the degree of persuasion which the plaintiff must achieve in the minds of the judge or jury in order to invoke the coercive powers of the state against the defendant. The law wisely proportions this standard to the gravity of the consequences of an erroneous judgment: thus a criminal charge must be proved beyond a reasonable doubt, while an ordinary claim of breach of contract may be established by a preponderance of the evidence. (See generally In re Winship (1970) 397 U.S. 358, 369--372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (Harlan, J., concurring).)

In the case at bar we are called upon to determine the proper standard of proof in mentally disordered sex offender proceedings. As we shall explain, we reject the asserted right of the state to publicly brand a man as a mentally disordered sex offender and lock him up for an indeterminate period in a maximum security mental hospital on a mere preponderance of the evidence, i.e., 'under the same standard of proof applicable to run-of-the-mill automobile negligence actions.' (Fn. omitted.) (Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 359, 92 S.Ct. 2091, 2093, 32 L.Ed.2d 791 (Douglas, J., dissenting from dismissal of certiorari).) We hold, rather, that in order to comply with the requirements of the due process clauses of the California and federal Constitutions, so drastic an impairment of the liberty and reputation of an individual must be justified by proof beyond a reasonable doubt.

The case is before us on an appeal by defendant Burnick (Pen.Code, § 1237, subd. 1) from an order adjudging him to be a mentally disordered sex offender within the meaning of Welfare and Institutions Code section 6300. ¹ The code provides that when a person is convicted of any offense the trial judge may adjourn the proceedings and certify the person to the superior court for a hearing if it appears to the judge there is probable cause for believing him to be a mentally disordered sex offender. (§ 6302.) This procedure was followed in the case at bar. ² The court found Burnick to be a mentally disordered sex offender, and committed him to Atascadero State Hospital for an indeterminate period. (§ 6316.) Burnick demanded a jury trial of the issue (§ 6318), but subsequently waived a jury and went to trial before the court. Prior to the taking of testimony Burnick requested that the court apply the standard of proof beyond a reasonable doubt in making its determination. The court refused the request and ruled that it would decide the case by a preponderance of the evidence. Under that standard, Burnick was again found to be a mentally disordered sex offender and a second order was made committing him to Atascadero for an indefinite period. (§ 6321.)

I

The importance of the standard of proof in mentally disordered sex offender proceedings is well illustrated by the case at bar. The evidentiary facts are uncomplicated. From psychiatric interviews and probation and other reports it developed that at age 12 Burnick had certain limited sexual contacts with men. He married, apparently while still a teenager, but his wife died in childbirth. For several years after her death he had no sexual relations with women. At the time of the events in question he was 28 years old, and was employed in a shop selling psychedelic art and materials. He became acquainted with two boys aged 13 and 15 years, and the three were friends for approximately a year. In the course of the latter months of that year they engaged in four to six consensual sexual acts, which were the basis of the charges brought against Burnick. He has no record whatever of violence, or of previous violations of law.

From these facts three psychiatrists, all eminently qualified by training and experience as experts on the subject of mentally disordered sex offenders, drew widely differing conclusions as to both Burnick's diagnosis and prognosis.

Dr. Alvin Davis, the sole witness for the prosecution, gave as his opinion that Burnick was a homosexual pedophile, i.e., a man who engages in sexual activities with adolescent boys; that he was likely to repeat such acts in the future; and that the conduct would be 'dangerous to the health and safety of others' (§ 6300), but only in the sense that youths who were still 'undecided' about their sexual identity might be influenced towards homosexuality because of their experiences with Burnick. On cross-examination, Dr. Davis conceded that a child's sexual identity begins to be formed early in life, long before puberty; that it is possible Burnick would limit his contacts to youths who were already homosexually oriented; and that his conduct would pose no danger to those who were either heterosexuals or confirmed homosexuals.

Two psychiatrists testified for the defense, and their views were in clear conflict with those of Dr. Davis. Dr. Michael Coburn denied that Burnick was a homosexual: although he had participated in both heterosexual and homosexual conduct on occasion, 'he is not a homosexual in the commonly understood meaning of the term. He is predominantly heterosexual in his past.' Nor was he pedophilic: 'I don't find him to be sexually attracted to prepubital human beings of either sex. . . . His interest is not in children but in sexually mature individuals, whether or not their age be mature.' Dr. Coburn's diagnosis was twofold: that Burnick had a highly immature personality, and that he suffered from a long-standing depression resulting from an inability to deal in a realistic way with the death of his wife.

The witness acknowledged that in standard psychiatric nomenclature both immature personality and depression are classified as 'character disorders.' But whether or not that general term is the equivalent of the statutory phrase, 'mental defect, disease, or disorder' (§ 6300), Dr. Coburn firmly concluded that Burnick was not 'dangerous to the health and safety of others.' Although it was 'possible' that he might again engage in acts such as those charged, it was not 'likely' because the events had caused him increased guilt feelings and decreased sexual pleasure. In any case, Dr. Coburn was of the opinion that isolated acts such as here involved would have no more than a slight effect on the sexual development of even an 'undecided' adolescent. ³

Dr. Andre Tweed also refused to classify Burnick as a homosexual, stressing his heterosexual activities. Rather, he found Burnick to be an immature person whose homosexual experiences were entirely situational. The witness recognized that immature personality is classified as a 'character disorder' in professional terminology, but explained that the label merely means that 'your behavior does not conform to that which society sets up at that particular moment as being the so-called norm.' ⁴

Dr. Tweed further stated that in his opinion Burnick was not a pedophile. The youths with whom he was involved were not children, and in the doctor's opinion had probably initiated the encounters themselves. Adolescents were not Burnick's primary interest: 'I don't believe that he is the type of individual who would go out and actively solicit activities with that particular age group.' Rather, his sexual feelings were 'directed more toward consenting adults.' In any event, according to Dr. Tweed, the average adolescent today has generally had 'some type of sexual experience, heterosexual or homosexual, and, it doesn't affect him one way or the other.'

For these reasons Dr. Tweed fully agreed with Dr. Coburn's conclusion that Burnick was not 'dangerous to the health and safety of others' and was not a mentally disordered sex offender.

No other witness testified, and no documentary evidence was introduced. In oral argument defense counsel sharply challenged the adequacy of the People's proof of each element of their case, urging for example that when we deal with 'the possible deprivation of liberty of an individual for his natural life . . . we need something more than just mere personality disorder,' and that the speculative risk of his influencing some youths towards homosexuality is not 'a sufficient danger to take away Mr. Burnick's liberty for such a prolonged period of time.' The court nevertheless found, by an asserted preponderance of the evidence, that Burnick was a mentally disordered sex offender within the meaning of section 6300.

II

The record shows that the trial court felt compelled to decide the issue by a preponderance of the evidence because of the statutory directive that in mentally disordered sex offender proceedings 'The trial shall, be had as provided by law for...