Tarantino v. Superior Court

• Citation: 48 Cal.App.3d 465,122 Cal.Rptr. 61
• Court: California Court of Appeals Court of Appeals
• Decision Date: 27 May 1975
• Parties: Ludwig TARANTION, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 36427.

Page 61

122 Cal.Rptr. 61

48 Cal.App.3d 465

Ludwig TARANTION, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 36427.

Court of Appeal, First District, Division 3, California.

May 27, 1975.

Hearing Denied Aug. 13, 1975.

Vernon L. Bradley, San Rafael, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest.

DRAPER, Presiding Justice.

Tarantino is charged with arson (Pen.Code, § 448a). At a hearing on pretrial motions held July 3, 1974, the trial judge expressed a doubt as to Tarantino's present mental competence, i.e., whether he is able to 'understand the nature of the proceedings taken against him and to assist counsel in the conduct of a defense in a rational manner.' (Pen.Code, § 1367.) The court suspended the criminal proceedings (Pen.Code, § 1368) and appointed two psychiatrists (Evid.Code, § 730) to examine petitioner and report to the court. Petitioner refused to be examined except in the presence of his attorney. Each psychiatrist refused so to proceed. The court held petitioner in contempt for refusal to submit to examination. The contempt order was annulled October 24 by another division of this court because of failure to comply with the requirements for constructive contempt, and remanded.

Before that remand, on September 27, amendments to sections 1367 and 1368 of the Penal Code had become effective. Under one of the these amendments (Pen.Code, § 1368, subd. a), the court inquired of defense counsel 'whether, in the opinion of the attorney, the defendant is mentally competent.' The inquiry was contained in a written order which directed counsel to answer in writing. Counsel refused. The court then appointed the same two psychiatrists to examine petitioner and report upon his present competency to stand trial, fixed a date and place for examination by each, and set a date for trial of that issue. Defense counsel demanded a jury. At the date set for jury trial of the issue of present sanity, each doctor testified that petitioner had appeared for examination accompanied by his attorney, two assistant counsel, and a court reporter. Each testified that he could not conduct an examination before such an audience, or even with only one attorney present. Counsel and client refused to permit examination without the presence of the attorney. The court held petitioner in contempt. He was sentenced to five days in jail, but execution of the order was stayed pending application for writ and decision thereon.

Petitioner Tarantino asserts that his right to counsel is denied if he is required to submit to a psychiatrist's questioning in the absence of his attorney. He also asserts his right not to incriminate himself.

It must be remembered that the inquiry here is as to his present competence to stand trial (Pen.Code, § 1368) and not his sanity at the time of the charged offense. (Pen.Code, § 1026.)

Even when the examination is ordered under section 1026 (i.e., to determine the issue raised by a plea of not guilty by reason of insanity) the presence of counsel at the psychiatric examination is not constitutionally required as long as three conditions are met: (1) counsel is informed of the appointment of psychiatrists; (2) the court-appointed psychiatrists are not 'permitted to testify at the guilt trial' unless the defendant places 'his mental condition into issue at the guilt trial'; and (3) '(i)f the defendant does specifically place his mental condition into issue at the guilt trial,' and the psychiatrist testifies, the court must instruct the jury that his 'testimony as to defendant's incriminating statements should not be regarded as proof of the truth of the facts disclosed by such statements,' but 'may be considered only for the limited purpose of showing the information upon which the psychiatrist based his opinion.' (In re Spencer, 63 Cal.2d 400, 412, 46 Cal.Rptr. 753, 761, 406 P.2d 33, 41.) With these protections, 'a defendant is not entitled to counsel at the psychiatric examinations * * *.' Nonetheless, the trial court 'in its discretion' may permit counsel to be present as an observer, that determination to turn in substantial part upon the attitude of the psychiatrist. (id. at p. 413, 46 Cal.Rptr. at p. 762, 406 P.2d at p. 42.)

As to the right against self-incrimination, we find no violation in compelling a defendant to submit to examination by court-appointed psychiatrists under section 1367 et seq., at least under a judicially declared immunity reasonably to be implied from the code provisions. The purpose of such inquiry is not to determine guilt or innocence. It has no relation to the plea of not guilty by reason of insanity. Rather, the sole purpose of these statutes is the humanitarian desire to assure that one who is mentally unable to defend himself not be tried upon a criminal charge. This purpose is entirely unrelated to any element of guilt, and there is no indication of any legislative intent that any result of this inquiry into a wholly collateral matter be used in determining the issue of guilt. Moreover, the issue of present competency, once the trial court's doubt has been expressed, must be decided before any trial of the charged offense. Both humanitarian and practical considerations call for a judicially declared immunity.

Such a declaration has express judicial sanction (Byers v. Justice Court, 71 Cal.2d 1039, 1043, 80 Cal.Rptr. 553, 458 P.2d 465). That judgment was vacated by the United States Supreme Court (California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9), but solely on the ground...