People v. Superior Court (Hulbert)

• Decision Date: 26 October 1977
• Citation: 74 Cal.App.3d 407,141 Cal.Rptr. 497
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF ORANGE, Respondent; Ken Richard HULBERT, Real Party in Interest. Civ. 17915.

Page 497

141 Cal.Rptr. 497

74 Cal.App.3d 407

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF ORANGE, Respondent Ken Richard HULBERT, Real Party in Interest.

Civ. 17915.

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

Oct. 26, 1977.

Hearing Denied Dec. 22, 1977.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., Oretta D. Sears and Gary P. Ryan, Deputy Dist. Attys., for petitioner and respondent

Frank L. Williams, Jr., Public Defender, and Michael Ian Garey, Deputy Public Defender, for real party in interest.

OPINION

THE COURT.

In this case we conclude that a reviewing court has jurisdiction to rule upon a petition for an alternative writ of mandate sought pursuant to Penal Code section 1538.5, subdivision (o ), when defendant has been found mentally incompetent to stand trial and committed to a state mental institution after the hearing on his motion to suppress evidence and the filing of the petition challenging the propriety of the lower court's ruling.

The People seek a writ of mandate or prohibition pursuant to Penal Code section 1538.5, subdivision (o ), to compel the superior court to vacate its order of March 28, 1977, granting the motion of the real party in interest (defendant) to suppress all evidence seized in a search of his residence pursuant to a search warrant except for the portion of the order suppressing two sets of keys and a Kodak Instamatic camera and its contents (items 7, 8 and 10 in the return to the search warrant). We issued an alternative writ of mandate.

Defendant Ken Richard Hulbert is charged with murder (Pen.Code, § 187), four counts of kidnapping for the purpose of robbery (Pen.Code, § 209), two counts of robbery (Pen.Code, § 211), two counts of rape (Pen.Code, § 261, subd. 3), assault with intent to commit murder (Pen.Code, § 217), three counts of oral copulation (Pen.Code, § 288a) and sodomy (Pen.Code, § 286).

The pretrial Penal Code section 1538.5 motion to suppress this evidence was granted upon the basis that the entry into defendant's residence violated Penal Code section 844 and the securing of the premises was an illegal seizure of the premises. The superior court found that (1) all the witnesses were credible and (2) the search warrant was supported by a valid affidavit containing sufficient probable cause.

The People timely filed a petition for a writ of mandate or prohibition pursuant to Penal Code section 1538.5, subdivision (o ), to compel the court below to deny defendant's motion to suppress.

The initial question presented in this appeal is one of first impression. It is whether this court has jurisdiction to rule upon a petition for an alternative writ of mandate sought pursuant to Penal Code section 1538.5, subdivision (o ), when defendant has been found mentally incompetent to stand trial and committed to a state mental institution after the hearing on his motion to suppress evidence and the filing of the petition challenging the propriety of the lower court's ruling. We conclude that we have jurisdiction.

After a jury determined in a hearing held pursuant to Penal Code sections 1368.1 and 1369 that defendant was mentally competent to stand trial, defense counsel made a pretrial motion to suppress evidence pursuant to Penal Code section 1538.5. On March 28, 1977, the lower court made the ruling complained of here granting a portion of the Penal Code section 1538.5 motion to suppress evidence.

On the following day, March 29, 1977, criminal proceedings were suspended and the court ordered a second hearing to determine whether defendant was competent to stand trial. On April 4, 1977, the People filed a notice of intention to file a petition for a writ of mandate or prohibition seeking appellate review of the ruling on the search and seizure motion. The instant petition for a writ of mandate or prohibition was filed on April 27, 1977.

On May 4, 1977, defendant was found to be mentally incompetent to stand trial and the court ordered him to be transported to Atascadero State Hospital. The alternative writ of mandate issued on May 31, 1977.

We do not agree with respondent's contention that this petition should be denied because he has been committed pursuant to Penal Code section 1368. That section states, in part:

"(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . .

"(b) If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. . . .

"(c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined."

Penal Code section 1368.1 provides, in part:

"(a) If the action is on a complaint charging a felony, the hearing to determine mental competence may not be held until after the information or indictment has been filed. A demurrer or a motion under Section 995 or 1538.5 may thereafter be made by counsel for the defendant, even though a proceeding to determine the defendant's mental competence is pending. . . ."

The California Supreme Court observed in Hale v. Superior Court, 15 Cal.3d 221, 227-228, 124 Cal.Rptr. 57, 61, 539 P.2d 817, 821: " 'Both courts and commentators have noted the desirability of permitting some proceedings to go forward despite the defendant's incompetency. For instance, § 4.06(3) of the Model Penal Code would permit an incompetent accused's attorney to contest any issue "susceptible of fair determination prior to trial and without the personal participation of the defendant. " An alternative draft of § 4.06(4) of the Model Penal Code would also permit an evidentiary hearing at which certain defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Some States have statutory provisions permitting pretrial motions to be made or even allowing the incompetent defendant a trial at which to establish his innocence, without permitting a conviction. We do not read this Court's previous decisions to preclude the States from allowing, at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel.' (Jackson v. Indiana, supra, 406 U.S. (715) at pp. 740-741, 92 S.Ct. (1845) at p. 1859, 32 L.Ed.2d (435) at p. 452, fns. omitted.)"

The statutory requirement that "the hearing to determine mental competence may not be held until after the information or indictment has been filed" was found constitutional in Chambers v. Municipal Court, 43 Cal.App.3d 809, 814, 118 Cal.Rptr. 120, and Hale v. Superior Court, supra, 15 Cal.3d 221, 229, 124 Cal.Rptr. 57, 539 P.2d 817.

By passing the statute, the Legislature indicated its determination that persons should not be committed for mental incompetence through the criminal process without any independent assessment by a magistrate of the sufficiency of the criminal charges. (Chambers v. Municipal Court, supra, 43 Cal.App.3d 809, 813, 118 Cal.Rptr. 120.)

It is clear from a reading of the statute that the Legislature did not intend the magistrate to have unbridled discretion in ruling on this issue. Provision is made for defense counsel to make a Penal Code section 995 motion even though a proceeding to determine defendant's mental competence is pending. (Pen.Code, § 1368.1, subd. (a).)

Although not specifically provided in the statute, common sense indicates that defendant's right of review does not end there, but would encompass defendant's filing of a petition for a writ of prohibition in the Court of Appeal to review the superior court's decision not to set aside the indictment or information.

The same reasoning applies to a pretrial Penal Code section 1538.5 motion to suppress. It is specifically provided in Penal Code section 1368.1, subdivision (a), that defense counsel may make a Penal Code section 1538.5 motion to suppress evidence even though a proceeding to determine defendant's mental competency is pending.

If the motion to suppress is denied in whole or in part, defendant has a statutory right under Penal Code section 1538.5, subdivision (i), to a review of the validity of this decision by means of an extraordinary writ of mandate or prohibition. If the motion to suppress is granted in whole or in part, the People have a statutory right under Penal Code section 1538.5, subdivision (o), to a review of the validity of this decision by filing a petition for a writ of mandate or prohibition in this court.

The statutory right to a review of the superior court's ruling on the Penal Code section 1538.5 motion to suppress does not conflict with the statutes under consideration here. Penal Code section 1367 states, "A person cannot be tried or adjudged to punishment while he is mentally incompetent." We are here dealing with pretrial motions to suppress evidence, not the determination of guilt or innocence. Furthermore, it states in Penal Code section 1368.1, subdivision (c), that the court may hear any matter capable of fair determination without the personal participation of the defendant in ruling on a demurrer or motion under Penal Code sections 995 or 1538.5 while a proceeding to determine the defendant's mental competency is pending.

Consequently, we hold that a Court of Appeal has jurisdiction to rule upon a petition for an alternative...