Tarantino v. Superior Court

Opinion

DRAPER, P. J .

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 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.

[469]

Petitioner Tarantino asserts thát 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.