People v. Samuel

BIRD, C. J., Concurring and Dissenting.

I concur in the result and in part II of the majority opinion which holds the evidence in this case to be insufficient to sustain the finding of competency. However, I dissent from the majority’s continued, albeit limited, reliance upon People v. Morse (1969) 70 Cal.2d 711 [ 76 Cal.Rptr. 391 , 452 P.2d 607 ]. People v. Disbrow (1976) 16 Cal.3d 101 [ 127 Cal.Rptr. 360 , 545 P.2d 272 ] and People v. Rucker (1980) 26 Cal.3d 368 [ 162 Cal.Rptr. 13 , 605 P.2d 843 ], have, in my view, overruled Morse sub silentio. “The salient *507 point is that in this state, the exclusionary rules relating to Miranda and to the privilege [against self-incrimination] apply regardless of the purpose for which the response is sought to be admitted or the timing of its admission. [Citations.]” (People v. Rucker, supra, at p. 391 .)

Additionally, the majority’s refusal to decide the issue of whether illegally obtained confessions are admissible at a competency hearing leaves counsel in a Catch-22 situation. If counsel withholds such statements from an expert whose opinion is sought concerning the present competency of his client, the expert witness’ opinion is subject to possibly devastating impeachment if the prosecutor can introduce the client’s statements at the competency trial. If counsel provides such material to the expert, under this court’s decision, he has waived his right to object to the introduction of the evidence as elicited on the cross-examination of the expert. Following either course will probably subject counsel to the claim that he has rendered ineffective assistance of counsel. (See maj. opn., ante, at p. 496, fn. 1.)

Since I do not agree that the Morse exception to the Miranda exclusionary rule has survived this court’s later cases and since failure to address the admissibility issue creates further uncertainty and confusion, I would resolve the question concerning the admissibility at a Penal Code section 1368 hearing of the illegally obtained statements. The reasoning found in People v. Moore (1968) 69 Cal.2d 674 [ 72 Cal.Rptr. 800 , 446 P.2d 800 ] is both applicable and persuasive. In Moore , a unanimous court decided that the exclusionary rule as it relates to illegal searches and seizures was applicable to narcotic addiction commitment proceedings, despite the fact that guilt was not in issue and the proceedings were labeled “civil” rather than “criminal.”

In Moore , the court reasoned that “the [narcotics addiction commitment] proceeding has some of the features pertinent to a criminal case” ( 69 Cal.2d at p. 681 ), citing, inter alia, the fact that the state is the defendant’s opponent, that the defendant is entitled to be represented by counsel at all stages of the proceedings, including appointed counsel if the defendant is indigent, and that liberty is at stake. Why don’t these same considerations apply to a section 1368 competency hearing? (See Pen. Code, §§ 1368, 1369, 1370.)

A competency hearing is even more closely related to a criminal trial since a finding of competency, in cases where defendant’s competency is in doubt, is a statutory and constitutional prerequisite to a determina *508 tion of criminal guilt. (Pen. Code, § 1367; Pate v. Robinson (1966) 383 U.S. 375, 378 [ 15 L.Ed.2d 815, 818 , 86 S.Ct. 836 ]; People v. Pennington (1967) 66 Cal.2d 508 [ 58 Cal.Rptr. 374 , 426 P.2d 942 ].) Moore teaches that where “it is apparent that there is a close identity to the aims and objectives of criminal law enforcement ... to hold unconstitutionally obtained evidence admissible in the proceedings would furnish an incentive to violate [the Constitution].” ( 69 Cal.2d at p. 682 .) (While there is dictum in the recent case of Estelle v. Smith (1981) — U.S. —, — [ 68 L.Ed.2d 359, 368-371 , 101 S.Ct. 1866 ] which implies that there may be no Fifth Amendment self-incrimination protection at a competency hearing, this court’s prior decisions indicate a different result under the state constitutional guarantee against self-incrimination (Cal. Const., art I, § 15).)

For these reasons, I would hold illegally obtained statements inadmissible at a section 1368 hearing.

Rattigan, J., * concurred.

Assigned by the Chairperson of the Judicial Council.