Cramer v. Tyars

588 P.2d 793, 23 Cal. 3d 131, 151 Cal. Rptr. 653, 1979 Cal. LEXIS 187

• Court: California Supreme Court
• Decided: January 12, 1979
• Docket: L.A. 30918
• Status: Published

Opinions

Opinion

RICHARDSON, J.

May a mentally retarded person who is the subject of a petition for civil commitment to the state Department of Health pursuant to former Welfare and Institutions Code section 6502 (all further statutory references are to that code unless otherwise cited) be called as a witness at the commitment hearing? We conclude that he may.

Preliminarily, we review certain provisions of sections 6500-6512 governing the commitment proceedings in issue. Section 6502 authorizes the verified petition for commitment be filed by the following: a parent, guardian, or other person charged with the support of the mentally retarded person, any district attorney or probation officer, the Youth Authority, any person so designated by the superior court in the county of the persons’s residence, or by the Director of Corrections. Mentally retarded persons are defined as those nonpsychotic persons “who are so mentally retarded from infancy or before reaching maturity that they are incapable of managing themselves and their affairs, independently, with ordinary prudence, or of being taught to do so, and who require supervision, control, and care, for their own welfare or the welfare of others, or for the welfare of the community” (§ 6500). Only those mentally retarded persons who constitute a danger to themselves or others can be committed to the Department of Health and the commitment is for one year’s duration subject to renewal by the same petition process (§ 6500.1).

Upon the filing of such petition the matter is set for hearing. The alleged mentally retarded person must be notified of the hearing, and, if the petition is filed by a probation officer, district attorney, the Youth Authority, or the Director of Corrections, the person’s parent or guardian also must be given such notice as is deemed proper by the court (§ 6504). Counsel must be furnished unless the person has his own attorney (§ 6500.1). At the hearing section 6507 directs the court to inquire into the “condition or status” of the alleged mentally retarded person and authorizes the court to invoke its subpoena power to require the attendance of medical specialists who have “made a special study of mental retardation,” a clinical psychologist and such other persons “as it deems advisable, to give evidence.” Finally, section 6509 governs placement procedures.

Against this statutory background we trace appellant’s history. Tyars was bom on February 12, 1957. At the time of the commitment proceedings under consideration he was almost 20 years old. Before 1965 he had lived with his mother in the Los Angeles area, and from 1965 to 1971 he was in a residential center in Ontario, California. In January 1971 Tyars was placed in the Patton State Hospital in San Bernardino County because of assaultive behavior against his family. Appellant has resided at Patton since that time.

On April 12, 1976, the District Attorney of San Bernardino County filed in the superior court of that county a petition for the commitment of appellant as a mentally retarded person pursuant to section 6502. The petition duly alleged the fact of Tyars’ mental retardation and that he was a danger to himself or others. The court appointed a public defender to represent appellant and the matter was set for hearing. The court also granted appellant’s request for trial by jury, required that any verdict be unanimous, allowed 13 peremptory challenges, and instmcted the jury that it must find in favor of Tyars unless convinced of the tmth of the essential allegations of the petition beyond a reasonable doubt.

Two medical examiners at the hearing diagnosed Tyars’ condition as mental retardation encephalopathy caused by a postnatal injury. The experts described further medical findings: that he suffered from seizures which were controlled by use of drugs such as dilantin, phenobarbital, and mysoline; that, depending on the measuring test used, Tyars’ I.Q. ✓ was between 48 and 57, well below the average range of 90-110; and that he was incapable of functioning in a community without supervision. The examiners concluded that his mental defect is permanent and that he is a danger to himself or others. Evidence further adduced at the hearing established that appellant lacks communication skills and has a physical ✓problem, a speech impediment diagnosed as “dysarthria,” in which the muscles controlling speech do not permit the affected person to enunciate words clearly. A psychiatric technician at Patton State Hospital, describv" ing appellant’s assaultive behavior, testified that Tyars had often attacked other residents and staff members of the hospital, including the technician, using his fists, tables, cue balls, or cue sticks, causing personal injuries and property damage.

At the hearing and over the objections of his counsel appellant was called as a witness pursuant to Evidence Code section 776 which provides for the examination of an adverse party in any civil action. The ✓ customary oath was not administered to him (he sat wherever it was comfortable for him in the courtroom) but the trial judge elicited a promise from him that he would tell the truth. The court expressly found y that Tyars, while incapable of understanding the oath, did understand the obligation to tell the truth.

Because of his speech handicap Tyars had difficulty in making himself understood. The trial court thereupon caused an “interpreter” who was familiar with appellant’s speech to be sworn to “translate English into English,” i.e., to make his answers intelligible. The court’s questions posed to Tyars were not restated by the interpreter; moreover, Tyars’ understandable words were not always the same as those repeated by the interpreter who would either summarize Tyars’ answer or simply answer the court directly. In substance, Tyars admitted several acts of violence including the throwing of chairs, “breaking someone’s head wide open,” and striking a hospital technician; he also named victims of other assaults and batteries and illustrated his testimony by swinging his arms in descriptive punching motions.

After 38 minutes of deliberations the jury returhed its verdict finding that appellant was a mentally retarded person who is a danger to himself and others. The court thereafter ordered that he be committed to the Department of Health for placement in a state hospital.

Availability as a Witness

The principle issue raised by appellant is the propriety of calling him, over objections, as a witness in his own commitment hearing.

We stress, preliminarily, the two separate and distinct testimonial privileges here involved. In a criminal matter a defendant has an absolute right not to be called as a witness and not to testify. (Amend. V of the U.S. Const, and art. I, § 15, of the Cal. Const, as codified in Evid. Code, § 930.) Further, in any proceeding, civil or criminal, a witness has the right to decline to answer questions which may tend to incriminate him in criminal activity (Evid. Code, .§ 940). However, as we shall develop more fully, notwithstanding these privileges, no witness has a privilege to refuse to reveal to the trier of fact his physical or mental characteristics where they are relevant to the issues under consideration.

Several features of the applicable statutes (§§ 6500-6512) persuade us that commitment of mentally retarded persons must be deemed essentially civil in nature. The commitment is not initiated in response, or necessarily related, to any criminal acts; it is of limited duration, expiring at the end of one year and any new petition is subject to the same procedures as an original commitment (§ 6500.1); the petitioner need not be a public prosecutor, but may be any parent or other person designated by the court (§ 6502). The sole state interest, legislatively expressed, is the custodial care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community. The commitment may not reasonably be deemed punishment either in its design or purpose. It is not analogous to criminal proceedings.

The predominantly civil character of the proceedings created by sections 6500-6512 establishes that appellant did not have an absolute right, as does a defendant in a criminal action, not to be called as a witness and not to testify. (Black v. State Bar (1972) 7 Cal.3d 676, 685 [103 Cal.Rptr. 288, 499 P.2d 968]; In re Vaughan (1922) 189 Cal. 491, 495-497 [209 P. 353, 24 A.L.R. 858]; People v. Whelchel (1967) 255 Cal.App.2d 455, 460 [63 Cal.Rptr. 258].) As expressed by the highest authority, the historic purpose of the privilege against being called as a witness has been to assure that the criminal justice system remains accusatorial, not inquisitorial. (Malloy v. Hogan (1964) 378 U.S. 1, 11 [12 L.Ed.2d 653, 661-662, 84 S.Ct. 1489]; Murphy v. Waterfront Comm’n. (1964) 378 U.S. 52, 55 [12 L.Ed.2d 678, 681-682, 84 S.Ct. 1594]; Hoffman v. United States (1951) 341 U.S. 479, 485-486 [95 L.Ed. 1118, 1123-1124, 71 S.Ct. 814].) The extension of the privilege to an area outside the criminal justice system, in our view, would contravene both the language and purpose of the privilege.

It follows from the foregoing that while appellant could properly be called as a witness at his commitment proceeding, like any other individual in any proceeding, civil or criminal, he could not be required to give evidence which would tend to incriminate him in any criminal activity and which could subject him to criminal prosecution. Referring to the sweeping nature of the privilege against self-incrimination, the United States Supreme Court has said: “ The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatoiy or adjudicatory ... it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used’ [Fn. omitted.] (Italics added.)” (In re Gault, 387 U.S. 1, 47-48 [18 L.Ed.2d 527, 557, 87 S.Ct. 1428], from conc. opn. by Justice White in Murphy v. Waterfront Comm’n., supra, 378 U.S. 52, 94 [12 L.Ed.2d 678, 704].) As we have noted previously, no mentally retarded person may be committed unless such person is a danger to himself or others (§ 6500.1). To the extent that the necessaiy elements of mental retardation and dangerousness may be established by evidence of criminal conduct, such evidence must, in its entirety, be elicited from sources other than the individual who is the subject of the commitment proceeding. In the matter before us the trial court, referring to Tyars, observed that “This is not a proceeding in which he could refuse to testify on the grounds that his testimony might tend to incriminate him.” This was erron/Xs we have explained, appellant could clearly have refused to testify regarding any criminal conduct in which he might have engaged or about any other matter which would tend to implicate him in criminal activity.

Because appellant’s counsel initially objected to Tyars testifying, we infer no waiver of the privilege against self-incrimination by counsel’s failure to renew his initial self-incrimination objection in response to subsequent specific questions. In the light of the trial judge’s clear expression of his position on the issue such repeated objections would have been futile.

We are of the view, however, that the foregoing error does not require a reversal under these circumstances. There was overwhelming evidence of appellant’s severe and irreversible mental retardation from both medical experts. The testimony of these two witnesses in conjunction with that of the psychiatric technician who, along with others, had been the object of appellant’s repeated assaultive behavior established beyond question that he was a danger to himself and others. No contrary evidence was introduced. Given the weight and nature of the uncontradicted evidence supporting the allegations of the petition it is clear that any erroneous questioning of the appellant was harmless beyond all reasonable doubt. (Chapman v. California (1966) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065].)

We conclude that, while appellant could not be questioned about matters that would tend to incriminate him, he was subject to call as a witness and could be required to respond to nonincriminatoiy questioning which may have revealed his mental condition to the jury, whose duty it was to determine whether he was mentally retarded. Reason and common sense suggest that it is appropriate under such circumstances that a jury be permitted fully to observe the person sought to be committed, and to hear him speak and respond in order that it may make an informed judgment as to the level of his mental and intellectual functioning. The receipt of such evidence may be analogized to the disclosure of physical as opposed to testimonial evidence and may in fact be the most reliable proof and probative indicator of the person’s present mental condition. (See People v. Ellis (1966) 65 Cal.2d 529, 533-534 [55 Cal.Rptr. 385, 421 P.2d 393] [voice identification not within the privilege against self-incrimination]; People v. Arnold (1966) 243 Cal.App.2d 510 [52 Cal.Rptr. 475] [handwriting identification not within the privilege against self-incrimination].) Similarly, a defendant even in a criminal proceeding may be required to give “real or physical” evidence in contrast to “communications or testimony” in the sense of disclosing knowledge. Thus the criminal defendant may be asked to stand, wear clothing, hold items, or speak words. (People v. Ellis, supra, at pp. 533-534; People v. Sims (1976) 64 Cal.App.3d 544, 552 [134 Cal.Rptr. 566].) It was proper for the jury to have the benefit of its own observations of Tyars’ responses, both in manner and content, to the court’s questions.

Appellant Tyars’ remaining contentions necessitate only brief comment.

Capacity as a Witness

Appellant now argues that he was incompetent to be a witness because of mental incapacity. His counsel, however, made no objection as to his competency as a witness at any time during the hearing and the objection must therefore be deemed waived. (People v. Berry (1968) 260 Cal.App.2d 649, 652-653 [67 Cal.Rptr. 312].) Nor do we find merit in appellant’s claim that his speech handicap necessarily made him an incompetent witness. As previously noted, a ward attendant who was very familiar with appellant’s speech served as an “interpreter” and there was no contention made at the hearing that this arrangement was unsatisfactory.

Jurisdiction

Appellant challenges the jurisdiction of the San Bernardino County Superior Court on the basis that, although Tyars has been hospitalized at Patton State Hospital in San Bernardino County since 1971, his parents “reside” in Los Angeles County. The controlling section, 6502, provides that “A petition for the commitment of a mentally retarded person to the State Department of Health . . . may be filed in the superior court of the county in which such person resides . . . .” The term “resides” has received differing interpretations depending on the context and purpose of the statute in which it appears. (See Kirk v. Regents of University of California (1969) 273 Cal.App.2d 430, 434-435 [78 Cal.Rptr. 260].) The inquiry into the degree of mental retardation and dangerousness mandated by section 6507 strongly suggests that periodically, perhaps annually, treating physicians and other witnesses must be produced in court in order to testify as to the present mental condition and potential danger from the subject, who also should be present during such inquiry. Under such circumstances, to define “the county in which such person resides” as other than that .in which he is hospitalized would seem to be both untenable and impractical. Furthermore, the interpretation which we herein indulge seems consistent with legislative intent, recently expressed in Health and Safety Code section 38450, that a habeas corpus hearing be held in the county of hospitalization for review and release of all admitted or committed developmental^ disabled. In this connection, similar considerations of convenience and economy suggest a like result for those who may be mentally retarded.

Placement Hearing

Appellant contends that immediately following the jury’s finding that he was mentally retarded and a danger to himself or others the court should have held a hearing to determine the least restrictive placement facility in which appellant could be placed. Such a hearing is not required.

Section 6509 provides that “[i]f the court finds that the person is mentally retarded . . . the court may make an order that the person be committed to the State Department of Health for hospitalization.” Appellant contends that use of the word “may” in section 6509 renders the provisions of that section permissive, thus requiring that the availability of alternate placements be considered by the court. This interpretation is incorrect. No statutory power is given to the court to do other than to commit the dangerous mentally retarded person to the Department of Health for hospitalization. Such an interpretation is consistent with section 6502 which requires that the petition filed under section 6500 shall seek a commitment to “state hospital.” The Legislature did not vest the courts with the power to determine the precise institutional placement that should be made. Courts are ill-suited for this task which is more properly the function of an appropriate medical administrative agency.

Appellant nonetheless contends that because former Health and Safety Code section 38009.2, now Welfare and Institutions Code section 6513, provides for placement in the least restrictive residential facility in the case of developmentally disabled persons who are subjects of civil commitment proceedings, equal protection principles therefore mandate that we read into section 6509 such a provision for “least restrictive” placement in the case of a dangerous mentally retarded person.

We conclude, however, that there is a rational basis for the distinction made by the Legislature between the placement procedures to be followed in regard to these two classes of individuals. The Legislature has determined that in the case of the dangerous mentally retarded person the only suitable treatment is confinement in a state hospital. A similar result does not necessarily follow in the case of the developmentally disabled person because no finding of dangerousness is required for commitment of the latter. Assuming, for purposes of discussion, that a strict scrutiny test is the proper equal protection standard to be applied in the instant case because of the liberty interest involved, there exists a clear and compelling state interest in the classification in issue. By very definition, in the case of the dangerous mentally retarded person, the state has a strong interest in protecting the general public, other patients, and the institutional personnel, from physical harm. Hospitalization in a state hospital serves to guarantee such protection, providing as it does the requisite trained assistants to restrain those who may become violent. Accordingly, appellant’s equal protection argument must fail.

Dangerousness as Affected by Medication

Appellant’s final contention is that the jury should have been allowed to consider his condition under medication in making its determination whether he was dangerous and that an instruction to the jury to this effect was improperly refused. The proposed instruction read, “In determining whether Luther Tyars is a danger to himself or others you may take into account improvement due to medication if it is likely that in the foreseeable future Luther Tyars would be provided with and take needed medication.” In seeking such an instruction, appellant’s counsel exceeded review of appellant’s current mental condition and potential for dangerous behavior and invited consideration of possible future behavior under hypothetical conditions. The pertinent issue under section 6507 is the present “condition or status” of the alleged mentally retarded person. The Legislature has not elected to authorize consideration of the factors of medication, or future changes in the patient’s condition. The proposed instruction was, accordingly, properly refused.

The judgment is affirmed.

Tobriner, J., Mosic, J., Clark, J., and Manuel, J., concurred.