acknowledging that section 288 may be violated where defendant instructed victim to disrobe
How later courts described this case
- acknowledging that section 288 may be violated where defendant instructed victim to disrobe
- “We conclude that the verdict finding defen- dant competent is a nonappealable, interlocutory ruling. It may be reviewed on appeal only from a final judgment in the underlying criminal proceeding.”
Written by the judges who cited it.
Distinguished
Distinguished by People v. Masterson, 8 Cal. 4th 965 (1994)
Mickle, supra, 54 Cal.3d 140, is distinguishable.
The opinion
KENNARD, J.
I concur in the judgment. I agree with most of the majority’s reasoning. I disagree, however, with certain aspects of the majority’s treatment of defendant’s contention that the trial court erred in allowing defendant himself to assert the attorney-client privilege at the competency hearing.
In support of his contention, defendant relied on People v. Samuel (1981) 29 Cal.3d 489 [ 174 Cal.Rptr. 684 , 629 P.2d 485 ]. In Samuel , we stated that in representing a client “as to whose competence the judge has declared a doubt sufficient to require a [Penal Code] section 1368 hearing,” an attorney “should not be compelled to entrust key decisions about fundamental matters *201 to Ms client’s apparently defective judgment.” (Id. at p. 495.) In tMs case, the majority expresses some doubt about “the continuing validity of Samuel” in light of our recent opinion in People v. Medina (1990) 51 Cal.3d 870, 881-885 [ 274 Cal.Rptr. 849 , 799 P.2d 1282 ], upholding the constitutionality of Penal Code section 1369, subdivision (f), wMch allocates the burden of proof at a competency hearing to the party seeking to establish the defendant’s incompetence. (Maj. opn., ante, p. 183.) In my view, the allocation of the burden of proof at the hearing to determine whether a defendant is competent to stand trial does not alter the fundamental obligation for a criminal defense attorney to render effective representation to a client at such a hearing. Under the statutory scheme governing the procedures for determining competency, there is no hearing until either the court or trial counsel makes an initial determination that the defendant’s mental competence is in doubt. (Pen. Code, § 1368.) Because that imtial determination calls into question the judgment of a defendant who is subject to a section 1368 hearing, Samuel's conclusion that defense counsel should not entrust key decisions to such a defendant was correct.
Also, it does not appear that the attorney-client privilege was even applicable to the specific question asked in tMs case. The attorney representing defendant at die competency hearing called defendant’s trial counsel as a witness and asked Ms opinion of defendant’s competence to stand trial. Because the question as posed would not require trial counsel to reveal the content of any confidential conversations he had with defendant, he could have answered it withoht violating the attorney-client privilege.
As the majority opinion correctly points out, however, we need not consider whether the trial court erred in permitting defendant to invoke the attorney-client privilege. Neither defendant’s trial counsel nor the attorney appointed to represent Mm at the competency hearing objected to defendant’s assertion of the privilege. Thus, the issue was not preserved for appeal.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied October 30, 1991.