People v. Westbrook

Decision Date28 December 1964
Docket NumberCr. 7926-7928
Citation397 P.2d 545,41 Cal.Rptr. 809,62 Cal.2d 197
CourtCalifornia Supreme Court
Parties, 397 P.2d 545 The PEOPLE, Plaintiff and Respondent, v. Sidney Lincoln WESTBROOK Defendant and Appellant.

Cy H. Lemaire and Marvin Katz, Los Angeles, under appointment by the District Court of Appeal, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant has appealed from three separate judgments. 1 The three appeals have been consolidated.

There is no doubt that defendant committed the acts with which he was charged. That is not disputed. The basic question presented on all three appeals is whether or not the trial courts involved properly handled the issue of the present sanity of the defendant. We are of the opinion that they did not, and for that reason the judgments must be reversed.

Defendant was originally charged with one count of grand theft (Pen.Code, § 487, subd. 3) and a second count of automobile theft (Veh.Code, § 10851). At the time of arraignment his counsel raised the question of present sanity, and in support thereof filed a report of one Henry M. Hamilton, M.D., a psychiatrist employed by the defense. In that report Dr. Hamilton stated that in his opinion, based on electroencephalography and other examinations, defendant suffered from brain damage, and was neither responsible at the time of the commission of the crime, nor sane 'within the meaning of Section 1368 PC.' 2 After discussion of the claim, and with no other report or evidence on the issue, the trial judge continued the matter for plea, and referred the case to Department 95 (Psychiatric Department) of the court, specifically stating that such reference was 'under Section 5047 Welfare and Institutions Code.' 3 There is no record of either trial or hearing in Department 95, but evidently defendant was examined by the psychiatrists there attached, because they filed a report containing the statement that 'Preliminary medical examination indicates that defendant is not mentally ill.'

On the date to which the plea had been continued, defendant was again in the original department, where he pleaded guilty to count II and a probation report was ordered. 4 Subsequently defendant was referred to yet another psychiatrist for examination (to be paid for by defendant's family), and after receiving that report the court dismissed count I, suspended proceedings, and granted five years' probation on condition of payment of a fine and making restitution. 5

Approximately nine months after defendant had been placed on probation he was again arrested and charged with the crimes which are the basis of the other two appeals. At that time the first matter was transferred to the department hearing the subsequent cases, for a hearing on breach of probation, and the three were heard together. At this point the court ordered another psychiatric examination by still another psychiatrist, and this time under the provisions of Code of Civil Procedure section 1871 (court-appointed expert). That examination resulted in a report that was mostly history given by the defendant, and although it contained what purported to be 'Findings and Opinions,' it contained no express opinion regarding present sanity. On receiving that report, the court again referred the matter of possible mental illness to Department 95. At this point the reporter's transcript commences, and there is a direct conflict between that transcript and the clerk's minutes as to the court's purpose in making that transfer. The clerk's minutes (which are, of course, only what the clerk interpreted the order to be) state that the matter is transferred for medical examination, and that if after such examination 'it is believed that the defendant is possibly mentally ill, a petition in reference thereto is ordered filed.' On the other hand, the reporter's transcript shows that after the court read the psychiatrist's report, the following took place:

'THE COURT: There is something wrong with this boy.

'MR. SCHOENHEIT (Deputy Public Defender): So would your Honor send him to 95?

'THE COURT: I will direct the sheriff to file a petition under 5047 of the Welfare and Institutions Code in Department 95.

'How long do we continue then'?

'THE CLERK: Two weeks.

'THE COURT: It will be continued two weeks from today at 9:30.'

It would appear from the clerk's minutes that the court intended the reference to Department 95 to be merely for the purpose of examination and report, reserving until a later date the determination of its doubt or lack of doubt as to defendant's sanity. On the contrary, the reporter's transcript expressly states that the trial judge intended a full determination of present sanity to be made by Department 95 under a petition alleging mental illness. In either event, the record does not show that there was any trial in Department 95. The file of the superior court (which is before us as part of an augmented record on appeal) contains two reports (on the same printed forms used when a defendant is held under verified petition alleging mental illness) from the psychiatrists attached to Department 95. Those reports refer to the examinations made almost a year previously, and repeat the finding of no mental illness. However, neither of those reports is referred to in either the clerk's or reporter's transcripts. Instead, when the matter was called after the two-week continuance, defendant was arraigned and pleaded guilty, and the matter continued for probation report. Thereafter probation was denied and defendant sentenced to prison for the term prescribed by law. At the time of sentence, the judge, after a long dissertation on the subject, stated that the defendant could not be released on probation because: (1) he would only repeat his crimes; (2) he undoubtedly had a sex problem; 6 and (3) he was undoubtedly in need of psychiatric help. Then, without any reference to the law applicable to sexual psychopaths, he pronounced sentence and added that he would recommend to the authorities that defendant be given psychiatric treatment.

Within the time in which to appeal, defendant filed, in propria persona, a handwritten document in each case. These documents have been treated as notices of appeal. Actually, each is a combination of a statement that defendant desires to appeal, a request that he be allowed to change his plea to 'innocent by reason of insanity,' and a plea to be hospitalized for his mental illness.

Counsel, appointed on appeal, raises two issues. The first is that both the first and second trial courts failed to comply with the provisions of Penal Code section 1368, in that defendant was not afforded a trial on the issue of present sanity, even though there was a clear doubt expressed. The second is based on the contention that the attempt to change plea as contained in the notices of appeal was, in effect, an application for writ of error coram nobis.

The second issue will be discussed first. It is true that an attempt to change pleas after judgment should be treated as a petition in coram nobis, but it is also true that such an application must be made in the first instance to the trial court (People v. Grgurevich, 153 Cal.App.2d 806, 810, 315 P.2d 391; People v. Wade, 53 Cal.2d 322, 339, 1 Cal.Rptr. 683, 348 P.2d 116). This was not done here, probably because the clerk did not recognize defendant's plea in propria persona for what it was, and thus did not call it to the attention of the trial judge. Normally we would merely remand all proceedings to the trial court with instructions to pass upon the application for coram nobis before proceeding with the appeal. However, the bare request to change pleas contained no express reason, fact or ground sufficient to justify relief. In its present form the trial court could have done nothing but deny it. Therefore, we shall consider the appeals. It should not be inferred from such statement that we are passing upon the merits of the application in the first instance. (See In re De La Roi, 28 Cal.2d 264, 169 P.2d 363, holding that such an application must first be determined in the trial court.) Regardless of our decision on the other issue presented, defendant will not be precluded, when his instant appeals become final, from addressing a proper application for coram nobis to the superior court, including the requisite factual allegations.

In answer to appellant's main contention, the Attorney General argues that no hearing on the issue of present sanity was required because no request for such a hearing was made. No such request is necessary. The statute requires the issue of present sanity to be tried if 'a doubt arises.' The doubt is in the mind of the trial judge, and cannot be affected or waived by defendant or his counsel. (See People v. Ah Ying, 42 Cal. 18, 21; People v. Vester, 135 Cal.App. 223, 233, 26 P.2d 685.) Determination of the issue before us thus requires an answer to the question whether either trial judge (or both) entertained such a doubt.

Due to the meagerness of the record, we do not have before us all that transpired between court and counsel, but we do know that each judge suspended proceedings during the period that the cause was transferred to the psychiatric department. If the purpose was merely to inquire into the defendant's mental condition as an aid to determination of a request for probation, no such transfer was required. The court could (and in one of the three cases before us did) require examination by an appointed psychiatrist, without transfer of the cause. If there was an economic basis for desiring examination by the psychiatrists attached to Department 95, such psychiatrists could have been appointed. Furthermore, the fact that one judge made the transfer before arraignment negatives any possibility...

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  • People v. Hill
    • United States
    • California Supreme Court
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    ...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. Defendant urges that he was entitled to a jury ......
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    ...a hearing on competence was unnecessary. (In re Davis, 8 Cal.3d 798, 808, 106 Cal.Rptr. 178, 505 P.2d 1018; People v. Westbrook, 62 Cal.2d 197, 203, 41 Cal.Rptr. 809, 397 P.2d 545; People v. Ah Ying, 42 Cal. 18, Other matters alleged in the petition regarding petitioner's trial counsel eith......
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    ...by section 1368 that the court presently has a doubt as to the defendant's competency. 10 (Cf. People v. Westbrook (1964) 62 Cal.2d 197, 203, 41 Cal.Rptr. 809, 397 P.2d 545 [criminal proceedings suspended and cause transferred to "psychiatric department," an order that could only be explain......
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