People v. Tracy

• Decision Date: 19 October 1970
• Docket Number: Cr. 3591
• Citation: 90 Cal.Rptr. 375,12 Cal.App.3d 94
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Andrew TRACY, Defendant and Appellant.

Page 375

90 Cal.Rptr. 375

12 Cal.App.3d 94

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Andrew TRACY, Defendant and Appellant.

Cr. 3591.

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

Oct. 19, 1970.

Rehearing Denied Nov. 4, 1970.

Hearing Denied Dec. 17, 1970.

[12 Cal.App.3d 96] John J. McCabe, Jr., San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lazubir L. Butler, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

On May 3, 1968, in action No. C--19511, the district attorney of Orange County filed a six-count information charging appellant, Michael Andrew Tracy, with three counts of robbery (Pen.Code, § 211), one count of kidnapping for the purpose of robbery (Pen.Code, § 209), one count of grand theft (Pen.Code, §§ 484--487), and one count of driving a vehicle without the consent of the owner (Veh.Code, § 10851). A codefendant was jointly charged with the robberies and with kidnapping for the purpose of robbery. The information also charged Tracy was armed with a deadly weapon at the time of each robbery.

On May 3, 1968, the public defender was appointed to represent Tracy, who was then arraigned, entered a plea of not guilty to all counts, and demanded a jury trial. The case was set for trial in Department V on June 26, 1968. On the trial date, Tracy appeared with the public defender in Department V, and the case was sent to Department I for change of plea. However, in Department I, the public defender moved to institute proceedings under Penal Code, section 1368 and requested a hearing to determine Tracy's present sanity. The motion was granted. Criminal proceedings were suspended, the court appointed Dr. Kramer and Dr. Kosewick as medical examiners and ordered them to examine Tracy and report to the court as required by law. Both doctors found him to be presently sane. On July 15, 1968, he appeared in court with his counsel, waived a formal hearing and stipulated the issue of his present sanity could be heard and determined on the doctors' written reports. The trial court found him presently sane, terminated the present sanity proceedings and reinstituted the criminal proceedings. Trial was set for August 14, 1968.

On August 12, 1968, Tracy appeared in court with the public defender. On motion of the district attorney, Count V of the information, charging robbery, was amended to allege he was armed with a 'dangerous' rather than a 'deadly' weapon at the time of the robbery. The district attorney stated if Tracy wished to plead guilty to Count V, as amended, he would recommend immediate referral to the diagnostic clinic under Penal Code, section 1203.03, 'primarily for the purpose of ascertaining whether or not he should be ultimately sentenced as a youthful offender under section 1203--B (Pen.Code, § 1202b).' After a thorough examination by the judge, Tracy was permitted to withdraw his plea of not guilty to Count V and to enter a plea of guilty. He waived time for the pronouncement of judgment and the right to apply for probation. The court ordered him referred to the California Institution for Men at Chino, pursuant to Penal Code, section 1203.03, for a diagnostic study and report before the imposition of sentence. Upon motion of the district attorney, the other five counts of the information were dismissed.

On August 30, 1968, a new four-count information (No. C--20026), arising out of events occurring in the Orange County jail before Tracy could be transported to Chino, was filed. The information was directed against Tracy and two codefendants. Three of the counts involved Tracy. He was charged in Count I with escape from custody while held for felonies (Pen.Code, § 4532(b)), in Count III with kidnapping (Pen.Code, § 209), and in Count IV with assault with a deadly weapon upon a police officer engaged in the performance of his duty (Pen.Code, § 245(b)).

On the date the new information was filed, Tracy appeared before the same judge who had sent him to Chino for observation after his plea of guilty to Count V of the first information. The public defender was again appointed to represent him, and later in the day he announced Tracy was ready to plead to Count IV of the information, charging assault on a police officer. Again after a through examination by the judge, Tracy was permitted to enter a plea of guilty to Count IV of the second information. No disposition was made of the escape and kidnapping charges on that date or at any other time. ¹ The court again referred him to Chino for observation and report under Penal Code, section 1203.03.

On October 24, 1968, the Department of Corrections transmitted the written report of its diagnostic study to the Orange County Superior Court. The letter of transmittal specifically referred to both cases No. C--19511 and No. C--20026. The report contained a psychiatric evaluation in which it was stated of Tracy:

'This is a markedly disturbed young man whose flattened affect, ambivalence, disorganization and abnormal content are sufficient for a diagnosis of paranoid schizophrenic. This examiner would agree with him that he needs the services of an inpatient psychiatric facility, but certainly cannot be trusted to obtain this service voluntarily. A commitment to the Department of Mental Hygiene would be the placement of choice at this time. His criminal activity cannot be separated from his schizophrenic illness and seems mostly a manifestation of bad judgment in which a latent aggressiveness is activated. With proper treatment continued on an outpatient basis, it could be hoped that he would make the kind of passive social adjustment that many treated schizophrenics do.'

Under the heading 'Psychiatric Diagnosis' the report indicated--'Schizophrenic reaction, paranoid type.' It recommended:

'Immediate return to court for commitment as mentally ill, indicating that his illness has led to criminal acts which could easily be dangerous to himself or others. Court should retain jurisdiction to make sure that in the event of his release proper treatment is continued and society adequately protected.'

The letter of transmittal stated:

'It is respectfully recommended to the Honorable Court that Michael Andrew Tracy be referred under Section 5551 Welfare and Institutions Code for eventual Commitment to the California Department of Mental Hygiene.'

On November 1, 1968, after receiving the report and recommendation from Chino, the judge in Department I of the Orange County Superior Court signed an order for Tracy's return to the court. On November 12, the same judge ordered a probation report and set the hearing 're: Probation and Pronouncement of Judgment' in his department for November 21. On that date Tracy appeared in Department I with the public defender who, apparently on the basis of the report received from Chino, moved, under Penal Code, section 1368, for a hearing to determine Tracy's present sanity. The motion was granted. The judge in Department I again suspended criminal proceedings, appointed Dr. Kosewick and Dr. Buehler to examine Tracy and set the present sanity hearing for December 16 in Department V.

Both doctors found Tracy to be presently sane. In their written reports, both expressed the opinion he was sane at the time the crimes were committed, able to deliberate and premeditate, understood the nature and purpose of the proceedings taken against him, and was able to aid his counsel in his defense in a rational manner. Oddly enough, with remarkable prescience, both doctors gratuitously opined Tracy was able 'to conduct his own defense.'

While both doctors found Tracy presently sane within the meaning of Penal Code, section 1368, and legally sane at the time of the alleged offenses, their reports both indicated he was suffering from serious mental illness. Dr. Kosewick stated:

'Diagnostic Impression: The defendant shows evidence of an inadequate personality and a sociopathic personality disturbance in an individual with symptoms of a paranoid type schizophrenic reaction. Because of his tendency to react impulsively in a violent manner, in my opinion he represents a danger to the health and safety of others.

'* * *

'Recommendation: Because of the persistence of the auditory hallucinations and the appearance of visual hallucinations, it is recommended that the defendant be committed to a state hospital for psychiatric treatment. I believe he would benefit from such treatment.'

On December 16, 1968, Tracy appeared in Department V with Mr. Bovee, a deputy public defender and the following conversation took place immediately after the court called the case:

'MR. BOVEE: Under the report that came back from Chino, the doctor who examined Mr. Tracy apparently feels he should be committed to the Department of Mental Hygiene. He has serious mental problems.

'Both Dr. Kosewick and Dr. Buehler report that he was not 1026 and he is not presently 1368. (Pen.Code, §§ 1026, 1368.)

'I explained to Mr. Tracy he could submit the matter on the reports, in which event he would be found presently sane and would be sentenced at this time, or that if he did not agree with that course of action he could set the matter down for a contested hearing.

'Apparently Mr. Tracy wishes to do neither. He wishes to withdraw his plea at this time.

'That is my understanding, in any event.'

The court then reminded Tracy the matter of the change of plea had been thoroughly discussed at the time it was made and asked him about it. Tracy disagreed and concluded with the statement which we quote together with the remarks of the public defender and the court which followed immediately.

(TRACY): 'The Public Defender would never give me my right or told me anything about what I could do for my rights, and at the same time I do know my rights and I wish to go pro. per., also.

'MR. BOVEE: We have no...