People v. Hill, Cr. 10808

• Court: United States State Supreme Court (California)
• Writing for the Court: PETERS; TRAYNOR
• Citation: 60 Cal.Rptr. 234,67 Cal.2d 105,429 P.2d 586
• Parties: , 429 P.2d 586 The PEOPLE, Plaintiff and Respondent, v. Harold Arthur HILL, Defendant and Appellant. In Bank
• Docket Number: Cr. 10808
• Decision Date: 25 July 1967

Page 234

60 Cal.Rptr. 234 67 Cal.2d 105, 429 P.2d 586 The PEOPLE, Plaintiff and Respondent,
v.
Harold Arthur HILL, Defendant and Appellant. Cr. 10808. Supreme Court of California, In Bank. July 25, 1967.

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[429 P.2d 590] [67 Cal.2d 111] Harold Arthur Hill, in pro. per., and Kate Whyner, Hollywood, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce Wm. Dodds, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant was adjudged guilty of second degree burglary after a trial by jury. He was also found to have been previously convicted, in 1958, of two felonies--burglary and assault with force likely to produce great bodily injury--and was found to have served a term in the state prison for each. Defendant appeals from the judgment of conviction.

Defendant, represented by Deputy Public Defender Gordon, entered a plea of not guilty to the burglary charge and denied the prior convictions. The cause was called for trial October 1, 1965, and the panel of prospective jurors was sworn. Defendant then interrupted the proceedings by announcing that he wished to have first a separate trial on the issue of his prior convictions. His attorney attempted to explain that in determining his guilt or innocence of the most recent charge, the jury would not be permitted to consider the prior convictions. Defendant's replies to Gordon were an incoherent jumble of dates, pleas, and priors. He seemed unable to understand that the recent burglary alleged in the information was the primary charge against him and that the priors would only affect the punishment. Defense counsel then stated to the court that defendant appeared to be incapable of cooperating with counsel in his defense--that a doubt existed as to his present sanity. He moved 'that this matter be referred to Dept. 95 (psychiatric department of the Superior Court of Los Angeles County) under the provisions of Penal Code Section 1368.' ¹ This motion

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[429 P.2d 591] was granted, Judge Olson announcing[67 Cal.2d 112] that he had a doubt of defendant's present sanity. A mistrial was declared under the option given the court in section 1368 to discharge or retain the jury.

Thereafter two physicians, Drs. Tweed and Davis, were appointed to examine defendant. On October 6 they submitted their reports on printed forms designed for use in § 1368 matters. Printed on the sheet is the following question: 'Is the person named in this report sane in that he/she is presently able to understand the nature and the purpose of the proceedings against him/her and to conduct or assist in his/her defense in a rational manner?' Both physicians placed a check mark in the 'Yes' square following the question. They also commented on defendant's mental condition. Dr. Davis found defendant 'correctly oriented' and found no hallucinations. Although defendant had accused defense counsel of plotting against him, in Dr. Davis' opinion this was 'not clearly delusional.' Dr. Davis concluded that defendant was 'not mentally ill.' Dr. Tweed reported 'no evidence of psychosis or mental illness as would be manifested by hallucinations or delusions.'

The sanity hearing provided for by section 1368 was conducted in Department 95 on October 13, 1965. Defendant was represented by Deputy Public Defender Moss, who submitted the matter to the court on the basis of the two physicians' reports. Although Drs. Tweed and Davis were present, counsel did not seek to cross-examine them. The court found defendant sane within the meaning of section 1368 and referred the matter back to the department where the guilt trial was pending.

On January 10, 1966, the guilt trial was held, this time before Judge Farley. Samuel Zablan, owner of Alan Men's Shop in Los Angeles, testified that some time after he had locked up the store on the night of July 8, 1965, it had been broken into by smashing in the plate glass in the front door. Seventeen suits and two pairs of pants, all bearing the label, 'Alan,' were missing.

Police Officer Wayne Songer of the Los Angeles Police Department testified that at 4:10 a.m. on July 9, while he was off duty, he heard the sounds of breaking glass and of a [67 Cal.2d 113] burglar alarm. At that time he was at a taco stand directly across the street from Alan Men's Shop. Songer observed defendant, carrying several suits on hangers, run out of the shop and around the corner. Songer pursued him on foot some 50 yards when defendant reached a Cadillac automobile, opened the trunk, threw in the suits, and drove off. Songer ran back to his own car and gave chase, overtaking defendant's automobile when the latter stopped at a red light. Suits were found in the trunk of the car, and they were the ones stolen from Alan Men's Shop.

As proof of the prior convictions the People placed in evidence certified copies of minute orders of the Superior Court of Los Angeles County, dated July 10, 1958, stating that Harold A. Hill had been found guilty of burglary and of assault by means of force likely to produce great bodily injury. The orders state that Hill was sentenced to state prison for both crimes. Accompanying the orders was a card with fingerprints of Hill and a photograph of him.

The defense presented no evidence and called no witnesses.

The Proceedings to Determine Present Sanity.

Defendant contends that in the § 1368 proceedings it was error (1) not to try that issue before the same judge who had declared the doubt as to his sanity; (2) for the court not to advise him that in that proceeding he had a right to a jury trial; and (3) that the court's finding of present sanity

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[429 P.2d 592] is unsupported. These contentions lack merit.

Section 1368 does not require the present sanity hearing to be held before the same judge that declared the existence of a doubt as to the accused's competence to stand trial. The section states that the sanity issue should be determined by 'the court,' unless a jury is demanded. ² There is only one superior 'court' in Los Angeles County (Cal.Const. art. VI, § 4; White v. Superior Court, 110 Cal. 60, 67, 42 P. [67 Cal.2d 114] 480; Brown v. Campbell, 110 Cal. 644, 648, 43 P. 12; Tubby v. Tubby, 202 Cal. 272, 276, 260 P. 294), and defendant's present sanity hearing was held in this 'court.'

The Rules of the Superior Court of Los Angeles County (1967) provide that all 'Hearings on questions of sanity under Section 1368 * * * of the Penal Code' be assigned to Department 95, the psychiatric department. (Rule 4, § 12, subd. (c).) We have previously given approval to the transfer of section 1368 matters to the psychiatric department of the Superior Court of Los Angeles County. (People v. Westbrook, 62 Cal.2d 197, 204, 41 Cal.Rptr. 809, 397 P.2d 545; see also In re Hedberg, 232 Cal.App.2d 728, 731, 43 Cal.Rptr. 193.)

Defendant urges that he was entitled to a jury trial on the issue of his present sanity, and that such right was not waived by him. In the first place a § 1368 hearing is not within the scope of article I, section 7, of the California Constitution, precluding a waiver 'in criminal cases' unless the defendant and his attorney concur. A § 1368 hearing is a special proceeding. ³ The only right to a jury trial in a special proceeding collateral to the criminal trial is that provided by statute. But defendant contends that since he was entitled to a jury trial, upon demand, the judge should have advised him of that right. Section 1368 imposes no such duty on the judge. The defendant was represented by counsel. Unless the statute expressly so directs, there is no duty in a judge to advise a defendant of his statutory rights where he is represented by counsel.

Except where representation by counsel is so ineffective that it can be described as a 'farce or a sham' (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Wein, 50 Cal.2d 383, 410, 326 P.2d 457; People v. Gutkowsky, 219 Cal.App.2d 223, 227, 33 Cal.Rptr. 79), an attorney may ordinarily waive his client's rights (Henry v. State of Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408) as to matters of trial tactics and "control the court proceedings" (People v. Merkouris, 46 Cal.2d 540, 554, 297 P.2d 999; People v. Bourland, 247 A.C.A. 36, 43, 55 [67 Cal.2d 115] Cal.Rptr. 357). Ordinarily, counsel need not inform his client of a particular right prior to waiving it for him. (See People v.

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[429 P.2d 593] Kramer, 227 Cal.App.2d 199, 201, 38 Cal.Rptr. 487.) ⁴

Although counsel at the present sanity hearing called no witnesses, presented no evidence, did not seek to cross-examine Drs. Tweed and Davis, and apparently did not inform defendant of his right to demand a jury trial, we cannot hold that such representation was a farce or a sham under the particular circumstances.

The strongly worded reports of Drs. Davis and Tweed apprised defense counsel that the deputy public defender's own doubts about Hill's mental competence were not borne out by any medical facts. ⁵ There just was no substantial evidence upon which defendant's counsel could have argued that his client was insane. It was, therefore, not improper for defense counsel not to contest the sanity issue.

Defendant's contention that there was insufficient evidence to support the finding in Department 95 that he was mentally competent to stand trial rests solely on Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (per curiam). But Dusky is readily distinguishable. It concerned only implementation of the federal statute providing for present sanity hearings (18 U.S.C.A. § 4244). Furthermore, there was more specific evidence of mental competence presented to the court in the instant case than in Dusky. ⁶ We [67 Cal.2d 116] hold

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[429 P.2d 594] that the reports of Drs. Davis and Tweed were clearly sufficient evidence of sanity to resolve the...