People v. Bye

• Decision Date: 05 March 1981
• Docket Number: Cr. 11726
• Citation: 116 Cal.App.3d 569,172 Cal.Rptr. 186
• Parties: The People, Plantinff and Respondent, v. Charles Roy BYE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 186

172 Cal.Rptr. 186

116 Cal.App.3d 569

The People, Plantinff and Respondent, v. Charles Roy BYE, Defendant and Appellant.

Cr. 11726.

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

March 5, 1981.

As Modified March 20, 1981.

Joel M. Kriger, San Diego, for appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Jay M. Bloom and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

TODD, ^* Associate Justice.

Defendant had been charged with one count of petty theft with a prior (Pen.Code, §§ 484, 666) and one count of burglary (Pen.Code, § 459).

On March 13, 1980, the criminal proceedings were suspended and a hearing to determine defendant's mental competency pursuant to Penal Code sections 1368 and 1369 was ordered. Ultimately, there was a jury trial on the issue. The defendant called no witnesses. The People called two psychiatrists who testified defendant was not mentally competent to stand trial. Over defendant's objection, the jury was instructed the burden of proof was the "preponderance of the evidence," the standard prescribed in Penal Code section 1369(f). The jury found defendant not competent to stand trial and the court ordered defendant committed to Patton State Hospital, where he remains.

Penal Code section 1368, et seq., constitute a comprehensive scheme for dealing with criminal defendants whose mental competency is suspect.

Section 1368 provides the court may order a hearing to establish the mental competence of defendant; when such a hearing has been ordered, the criminal proceedings are suspended.

Section 1369 provides either counsel for the defendant or the prosecution may offer evidence in support of the allegation of mental incompetence.

Section 1369(f) provides the defendant is presumed competent unless he is proved mentally incompetent by a "preponderance of the evidence."

If the issue is tried to a jury, section 1369(f) requires the verdict be unanimous.

Section 1370 provides if the defendant is found to be mentally competent, the criminal process resumes. If the defendant is found to be mentally incompetent, the criminal process is suspended until he becomes mentally competent. In the meantime, the defendant shall be committed to a state hospital or other treatment facility or shall be ordered to undergo outpatient treatment. If the defendant is charged with certain crimes enumerated in section 1370, he must be confined in a mental health facility for a minimum of 90 days before he may be released on outpatient treatment. (Id.)

Section 1370 further provides that within 90 days of a commitment, the superintendent of the treatment facility shall report to the court concerning the defendant's progress toward recovery of his mental competence. If the defendant has not regained his competence, but there is a substantial likelihood that he will in the foreseeable future, the defendant is to remain in the treatment facility. Subsequent reports are submitted at six-month intervals, with another section 1369 hearing after 18 months, if the defendant is still hospitalized. (Id.)

The maximum period of commitment under this scheme is three years or the maximum sentence provided for by law for the most serious offense with which the defendant is charged, whichever is shorter. (Id.)

At the end of that period, or whenever the superintendent reports there is no substantial likelihood the defendant will regain his competence in the foreseeable future, the defendant is to be returned to the court. If it "appears to the court" that the defendant is "gravely disabled" as defined in the Lanterman-Petris-Short (LPS) Act (Welf. & Inst.Code, § 5000 et seq.) conservatorship proceedings shall be commenced. (Id.)

These conservatorships are for one year and are renewable on a showing that the person remains "gravely disabled." (Welf. & Inst.Code, § 5361.)

Finally, continuing incompetence for purposes of section 5008(h)(2) may be established by a preponderance of the evidence Conservatorship of Hofferber (1980) 28 Cal.3d 161, 167 Cal.Rptr. 854, 616 P.2d 836.

The statutory scheme set out above can serve two purposes. In its usual application, the defendant seeks to avoid the penal consequences of a criminal conviction by establishing his incompetency. As an incompetent, he cannot be tried and convicted. The procedures seem reasonably calculated to protect mentally disordered defendants from the unfair burden of defending a criminal charge when they are unable to understand the charges against them or to assist counsel in their defense. The burden of proof established by the statute (a preponderance of the evidence) is necessary to overcome the presumption of competency.

But the application of section 1368 et seq., is not restricted to incompetency claims pressed by the defense. Section 1369 provides if the defense declines to present evidence in support of the allegation of mental incompetence, the prosecution may do so. As the outline of the statutory provisions above makes clear, a determination of mental incompetency can lead to commitment in a state institution for up to three years followed by an LPS Act conservatorship of indefinite duration.

The defendant attacks this procedure as unconstitutional under the due process clause of the California Constitution (Art. I, § 7, subd. (a)) and the due process clause of the Fourteenth Amendment to the United States Constitution. These are issues of first impression in California.

Defendant first argues the section 1369 hearing should be considered a criminal proceeding involving the "beyond a reasonable doubt" standard of In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. He contends the case arose under the Penal Code, the jury "necessarily" had to determine defendant did the act with which he was charged, and the decision to commit leaves the stigma he was committed to a mental institution for the commission of a criminal act. Defendant seeks to strengthen the analogy to criminal proceedings by noting if he recovers his competency and is convicted of the charged offense, his sentence must be reduced by crediting him with time spent in the state hospital (Pen.Code, § 1375.5).

Finally, his period of commitment as an incompetent may not exceed the maximum sentence provided for the offense charged (Pen.Code, § 1370 subd. (c)(1)). Therefore, the proceeding is criminal in nature and due process requires proof beyond a reasonable doubt, argues defendant.

People v. Fields (1965) 62 Cal.2d 538, 42 Cal.Rptr. 833, 399 P.2d 369, specifically holds section 1368 proceedings are not criminal in nature. "In a proceeding under section 1368 a defendant is not charged with a criminal act and is not subject to criminal proceedings ... if he is found insane." (Id. at p. 540, 42 Cal.Rptr. 833, 399 P.2d 369.)

We find no basis to support defendant's contention that the jury will necessarily have to pass upon the guilt of defendant in the proceeding. Nor does it necessarily follow that commitment of the incompetent will stigmatize him as having committed a crime. The state's beneficence in reducing a prisoner's sentence by the period which he spent before conviction in a treatment facility hardly stamps the latter as penal in nature. Clearly defendant's situation is distinguishable from a conventional criminal proceeding contemplated by the U.S. Supreme Court in In re Winship, supra, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and that opinion is not controlling.

In Addington v. Texas (1979) 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323, the U.S. Supreme Court held a " 'clear and convincing' standard of proof is required by the Fourteenth Amendment in a civil proceeding under state law to commit an individual involuntarily for an indefinite period to a state mental hospital." The court rejected the suggestion the Constitution mandated the criminal law standard of proof (Id. at p. 431, 99 S.Ct. at 1813). Does this holding render the "preponderance of the evidence" standard constitutionally defective in the instant case? The following factors need be compared: (1) in a section 1368 proceeding, just as in an ordinary civil commitment proceeding the subject faces a substantial and possibly lengthy loss of liberty; (2) both determinations carry the stigma of a formal judgment of mental instability; (3) in both proceedings, the state's purposes are benevolent to treat the subject and assist him to function normally, if possible; (4) the purpose of the inquiry in each instance is different. In the civil commitment case, the issue is whether the subject is ill and dangerous. In the section 1368 proceeding, the issue is whether the subject can function well enough to understand the criminal charge and assist in his own defense.

In California, Conservatorship of Roulet (1979) 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1, determined proof beyond a reasonable doubt was required before a conservator could be appointed under the LPS Act's grave disability provisions (Welf. & Inst.Code, § 5350, et seq.) with the power to involuntarily commit a conservatee to a state mental institution for up to a year. As in Addington, the California Supreme Court listed the prison-like physical restraint, the irrelevancy of the state's benevolent purpose in confining and the stigma associated with appointment of a conservator with confinement authority, as strong factors requiring the higher standard of proof, thus assuring due process.

In People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, the California Supreme Court held the due process clause of the California Constitution (Art. I, § 7, subd. (a)), and the Fourteenth Amendment to the U.S. Constitution required the "beyond a reasonable doubt" standard be applied in MDSO proceedings whenever a subject is committed or recommitted to the State Department of Health as an MDSO. In People v. Thomas (19...