In re WILLIAM JEROME PHYLE, on Habeas Corpus, 30 Cal. 2d 838

TRAYNOR, J. William Jerome Phyle was found guilty of first degree murder and sentenced to be executed. The judgment was affirmed by this court {People v. Phyle, 28 Cal. 2d 671 [171 P.2d 428]), and the date of execution was set for December 26, 1946. While defendant was awaiting execution at the state prison at San Quentin, the warden of that prison initiated proceedings pursuant to

section 3701 of the Penal Code to determine the question of defendant’s sanity. After a jury trial defendant was adjudged insane and committed to the Mendocino State Hospital. On January 18, 1947, the superintendent of that hospital certified to the Governor that defendant had recovered his reason. The Governor then issued a warrant to the warden of the state prison at San Quentin appointing May 2, 1947, the day of execution.

One of defendant’s attorneys filed a petition for a writ of habeas corpus in this court, contending that the superintendent of the Mendocino State Hospital has no authority under the law of this state to release the defendant to the warden of the state prison at San Quentin without an adjudication of a competent court that defendant has recovered his reason. This court issued the writ for the purpose of giving consideration to this contention.

Section 1367 of the Penal Code provides that “A person cannot be tried, adjudged to punishment, or punished for a public offense while he is insane.” The question of defendant’s sanity at the time of the commission of the offense or at the time of his conviction or sentence is not involved in this proceeding. The only question presented is whether a person who has been adjudged insane after conviction, sentence, and delivery to a warden of a state prison for execution, has the right to a judicial determination of the question of his restoration to sanity.

The procedure for determining the question of the sanity of a prisoner under sentence of death is specified in sections 3700 to 3704 of the Penal Code.

Section 3700 provides that, “No judge, court, or officer, other than the Governor, can suspend the execution of a judgment of death, except the warden of the State prison to whom he is delivered for execution, as provided in the six succeeding sections, unless an appeal is taken.” Four of the six sections referred to relate to the question of the prisoner’s sanity. The other two, which prescribe the procedure for determining the question of the pregnancy of a woman sentenced to death, are not material in this case.

Section 3701 provides for the determination of the question of defendant’s sanity after he has been delivered to the state prison: “If after his delivery to the warden for execution, there is good reason to believe that a defendant, under judgment of death, has become insane, the warden must call such fact to the attention of the district attorney of the county in which the prison is situated, whose duty it is to immediately file in the superior court of such county a petition, stating the conviction and judgment, and the fact that the defendant is believed to be insane, and asking that the question of his sanity be inquired into.”

Section 3702 provides the procedure for the hearing held pursuant to

section

Section 3703 provides that “The verdict of the jury must be entered upon the minutes, and thereupon the court must make and cause to be entered an order reciting the fact of such inquiry and the result thereof, and when it is found that the defendant is insane, the order must direct that he be taken to a State hospital for the insane and there kept in a state of confinement until his reason is restored.”

Section 3704 provides for the disposition of the defendant after the court’s order is entered: “. . . if it is found that the defendant is insane, the warden must suspend the execution and transmit a certified copy of .the order mentioned in the last

section to the Governor, and deliver the defendant, together with a certified copy of such order, to the medical superintendent of the hospital named in such order.

When the defendant recovers his reason, the superintendent must certify that fact to the Governor, who must thereupon issue to the warden his warrant appointing a day for the execution of the judgment, and the warden shall thereupon return the defendant to the State prison pending the execution of the judgment.” (Italics added.) It is apparent from a reading of sections 3700 to 3704 of the Penal Code that there is no provision for a judicial determination of the question of the sanity of a defendant delivered to the warden of a state prison for execution except as set forth in

section 3701. In fact,

section 3700 expressly provides that after the defendant has had his appeal to this court, the execution of his sentence lies exclusively within the control of the Governor, and the warden of the prison.

Petitioner contends, however, that the question of restoration to sanity after a judicial determination that defendant is insane is necessarily a judicial question and that the statute must be interpreted as if it provided that, “when it has been judicially determined that defendant has recovered his reason the superintendent must certify that fact to the Governor. . . .” Petitioner maintains that in view of the cases construing statutory provisions regarding the restoration to sanity of a defendant adjudged insane during the course of his trial (Pen.

Code, §§ 1367-1372) defendant has a right to a judicial determination of the question of his restoration to sanity. Petitioner relies on the rule that a person confined in a state hospital pursuant to those provisions has a right to habeas corpus to determine whether his sanity has been restored. (Gardner v. Jones, 126 Cal. 614, 618 [59 P. 126] ; In re Buchanan, 129 Cal. 330, 331 [61 P. 1120, 50 L.R.A. 378] ; see People v.

Superior Court, 4 Cal.2d 136, 145 [47 P.2d 724].) It is true that a defendant committed to such an institution has a right to his release therefrom, if it is determined on habeas corpus that he is improperly held because he is presently sane. If it is found that he is sane, he is returned to the custody of the sheriff and his trial proceeds. (In re Buchanan, supra, at p. 336.) In the present case, petitioner does not seek release of defendant from the state hospital, on the ground that he is sane, for if he were found sane he would be delivered to the warden for execution.

Instead, petitioner seeks the return of defendant to the state hospital, on the ground that he was improperly discharged therefrom. There is no authority, however, for the proposition that defendant has a right to habeas corpus or other judicial proceeding to determine the question of his sanity after his release from the state hospital. In fact,

section 3700 of the Penal Code expressly prohibits such a proceeding. Once the superintendent certifies that defendant is sane, he is remanded to the custody of the warden for execution and “No judge, court or other officer other than the Governor” can then suspend the execution of the judgment, “except the warden of the State Prison to whom he is delivered. ...” Nor is there any provision for the superintendent to initiate judicial proceedings to ascertain the fact to which he certifies.

The superintendent is not authorized, as the warden is, to call the question to the attention of a district attorney for a judicial determination. Instead, it is his duty to certify the fact to the Governor “who must thereupon issue his warrant appointing a day for the execution. . . .” Since the method of determining the question of the sanity of a person awaiting execution is controlled by the Legislature and since the Legislature has provided in Penal Code,

section 3700, that the courts cannot suspend the execution of a judgment of death and has provided in

section 3701 for a judicial proceeding to determine the question of defendant’s sanity only when the warden invokes such a proceeding, it is clear that the question of restoration to sanity under

section 3704 is a question for the determination of the superintendent. This

interpretation of

section 3704 is in accord with the

interpretation by this court of the almost identical language of

section 1372, which relates to the question of the restoration to sanity of a person who has been judicially adjudged insane before conviction.

Section 1372, which was amended to its present form at the same time as the provisions with respect to the restoration to sanity of a person adjudged insane after conviction and sentence (Stats. 1905, pp. 699, 704), provides: “If the defendant is received into the state hospital he must be detained there until he becomes sane. When he becomes sane the superintendent must certify that fact to the sheriff and district attorney of the county. The sheriff must thereupon . . . place him in proper custody until he is brought to trial or judgment as the case may be, or is legally discharged.” (Italics added.) In construing

section 1372 in People v. Superior Court, 4 Cal.2d. 136, 144-147 [47 P.2d 724], this court held that the question of defendant’s restoration to sanity is for the superintendent to determine. The court stated that once a person has been committed to a state hospital under

section 1372, “ ‘no court in this state is authorized to discharge him therefrom, or to restore him to the capacity of a sane person, under any circumstances, except upon a writ of habeas corpus. The power to discharge him otherwise than upon habeas corpus is vested exclusively in the officers of the asylum ’ . . . The Penal Code undoubtedly prescribes the exclusive manner by which the proceedings shall be set in motion when the defendant is restored to sanity or is not insane.” (People v.

Superior Court, supra, at 145.) After the superintendent determines that a defendant placed in his custody pursuant to sections 1370 to 1372 of the Penal Code is sane, the defendant is returned to the court in which his trial had begun. It is not necessary for the verdict finding him insane to be vacated before the trial court may proceed. (People v. Rice, 83 Cal.App. 55, 60 [256 P. 450].) When the provisions in question of both

section 1372 and

section 3704 were adopted in 1905, a substantially similar provision of the Criminal Practice Act (Stats. 1851, p. 278, § 591) relating to the restoration to sanity of a person adjudged insane before judgment had already been interpreted by this court.

Section 589 of that act provided for the delivery of a person found to be.insane before judgment to the custody of a “proper person” and for his redelivery by such person to the sheriff upon his becoming sane.

Section 591 provided that, “If the defendant be received by the person so appointed he must be detained by him until he becomes sane. When he becomes sane, such person shall give notice to the Sheriff and District Attorney of the County of that fact.” (Italics added.) In People v. Farrell, 31 Cal. 576, 580, it was held that this provision did not require a judicial determination of the question of restoration to sanity and that the verdict of insanity under which the defendant was committed did not have to be vacated before the defendant could be tried.

Accordingly, it was not error for the trial court to proceed with the trial of the defendant without instituting “some form of judicial inquiry into the present sanity of the accused.” (People v. Rice, 83 Cal.App. 55, 60, supra; People v. Superior Court, 4 Cal.2d 136, 144-147, supra.) Since these statutes are obviously in pari materia, the

interpretation of a sentence in one controls the

interpretation of virtually the same sentence in the other. It must be assumed also that when the Legislature adopted the present provisions of

section 3704, it was aware of the construction that had been given

section 591 of the Criminal Practice Act. Petitioner contends, however, that

section 3704 is modified by

section 6760 of the Welfare and Institutions Code, which provides: “A patient committed to a State hospital under the provisions of

Chapter VI, Title X

Part II of the Penal Code, shall, upon the certificate of the superintendent that the person has recovered, approved by the superior judge of the county from which the patient was committed, be redelivered to the sheriff of such county, and dealt with in accordance with the provisions of the abovementioned

chapter of the Penal Code.” Even if it be assumed that this

section requires a judicial determination of the question of the restoration to sanity of one committed pursuant to the

chapter of the code referred to (cf. People v. Superior Court, supra, 143-146), it clearly has no application to the present case, for petitioner was not committed under the provisions of that

chapter of the Penal Code, but under the provisions of

chapter 2, title 3,

part 3 of that code with respect to which there is no provision comparable to

section 6760 of the Welfare and Institutions Code requiring approval of the superintendent’s certificate by the superior judge of the county from which the patient was committed. Petitioner contends also that there is an inherent judicial power to determine the question of restoration to sanity, regardless of the statutes. He cites for this proposition the case of People v. Scott, 326 Ill. 327, 338 [157 N.E. 247] wherein it was held, in the absence of a statutory provision regarding restoration to sanity, that a jury trial of the question of sanity was proper.

Where there is a statute that declares that the superintendent of the state hospital where the prisoner is confined may declare the prisoner’s sanity restored, a person awaiting execution has no right to a judicial determination of Ms restoration to sanity. (Barrett v. Commonwealth, 202 Ky. 153, 160 [259 S.W. 25] By adopting

section 3700 of the Penal Code prohibiting the courts from suspending the execution of a judgment of death except on appeal, the Legislature has provided in effect that the courts of this state are without power, except as provided by statute, to determine the sanity of a person who has been sentenced to be executed for a capital offense and is in the custody of the warden of a state prison for the purpose of execution. (See People v.

Sloper, 198 Cal. 601, 608 [246 P. 802].) Thus, regardless of what the common law powers of a court may be, when the procedure for the determination of the question of the samty of a person who has been sentenced to death is covered by statute, a court has no inherent power to determine that question and such a person has no right to a judicial determination of the question unless the statutes so provide. (State v. Alexander, 87 Utah 376, 381 [49 P.2d 408]; Howell v. Kincannon, 181 Ark. 58 [24 S.W. 2d 953, 956]; Cribb v. Parker, 119 Ga. 298 [46 S.E. 110]; Baughn v.

State, 100 Ga. 554 [28 S.E. 68, 70, 38 L.R.A. 577] ; Nobles v. Georgia, 168 U.S. 398, 404 [18 S.Ct. 87, 42 L.Ed. 515] ; see Baranoski’s Case, 9 Pa. Co. Ct. 264, 266; cases collected 49 A.L.R. 804; 38 L.R.A. 577, 588.) In California, moreover, this matter has never been governed by common law principles. Since the first Criminal Practice Act in this state (Stats. 1850, p. 312, § 505; § 473 of the Criminal Practice Act of 1851, Stats. 1851, p. 264; § 1224 of Pen. Code of 1872), the question of the sanity or restoration to sanity of such prisoners has been governed by statute.

Until 1905, either the Governor or a judge of the trial court could determine whether or not a prisoner was sane and order his execution after he had been found insane by an inquisition. This provision was changed in 1905 by an amendment to

section 1224 of the Penal Code whereby all reference to the court was omitted and the Governor was directed to issue a warrant for the execution of the prisoner on receipt of a certificate from the superintendent of the hospital.

Section 3704 is a continuation of this provision. (Pen. Code, § 10000.) The courts of this state have therefore never had the right, independent of statute, to determine the question of the restoration to sanity of a defendant who is in the custody of a warden of a state prison for execution pursuant to a lawful judgment of death. The question remains whether the statutory procedure for determining the question of restoration to sanity is constitutional.

Petitioner contends that defendant has a right to an adjudication of the question of his sanity, protected by the due process clauses of the Constitution of the United States and the Constitution of California. There is no such right under either Constitution. The United States Supreme Court has held that the procedure for determining the question of the sanity of a person who has been properly convicted of a capital offense and sentenced to death is a matter for the Legislature and courts of the jurisdiction in which the defendant is convicted and presents no federal question. (Nobles v.

Georgia, 168 U.S. 398, 404 [18 S.Ct. 87, 42 L.Ed. 515].) On this ground the court affirmed a decision by the Supreme Court of Georgia (Baughn v. State, 100 Ga. 554 [28 S.E. 68, 70, 38 L.R.A. 577]) that under the laws of Georgia a person convicted of a capital offense and sentenced to death who thereafter becomes insane has no right to a judicial determination of the question of his sanity. (See, also, cases collected in 49 A.L.R. 804.) We see no reason why the due process clause of the California Constitution should be interpreted differently.

The statutes of this state therefore provide the measure of defendant’s rights to any determination of the question of his sanity. Defendant has thus far been afforded the full protection of those statutes. He was entitled to a judicial determination of the question of his sanity after conviction and sentence only because the warden of the state prison at San Quentin believed that he was insane. The effect of the adjudication that he was insane was to prevent his execution until the superintendent of the state hospital to which he was sent certified that he had recovered his reason.

His only right to another judicial determination of that question depends on the belief and action of the warden of the prison to whose custody he has been returned. (See People v. Farrell, 31 Cal. 576, 581; People v. Rice, 83 Cal.App. 55, 61 [256 P. 450].) This court has already decided that the authority given the warden constitutes adequate protection to one who has been properly convicted of a capital offense. In People v. Sloper, 198 Cal. 601, 607-608 [246 P. 802], the defendant was convicted of murder in the first degree and sentenced to death. On appeal to this court, the judgment was affirmed.

Defendant then sought to prevent the fixing of a date for execution and to obtain a trial on the question of his sanity. Upon the denial of this motion, defendant applied to this court for a stay of execution. In denying the application, this court, on the authority of Penal Code

section 1221 (now § 3700), held that no court in this state has the power to suspend the execution of a judgment of death to determine the question of the sanity of a person who became insane after his conviction and sentence. The court stated that “adequate statutory provision is made for the complete protection of the rights of a defendant who may have become insane after his conviction and sentence. . . .

If it be found that defendant is insane [pursuant to these statutes], the court must direct that he be taken to one of the state hospitals for the insane, and there kept in safe confinement until his reason is restored. When the defendant recovers his reason the superintendent of the hospital must certify that fact to the Governor, who must thereupon issue to the warden his warrant appointing a day for the execution of the judgment. . . .

We must conclude, therefore, that it was the intention of the legislature to limit the jurisdiction of the trial court, in proceedings of this nature to the making of the orders necessary to carry the judgment into effect. We are of opinion also, that, in view of the comprehensive and adequate provision made for the determination of the question of the sanity of a defendant who is alleged to have become insane after the rendition of a judgment of death, no substantial right of the defendant Sloper was affected by the action of the court below in denying his motion. . . .

If it be a fact in this case that the condemned man is insane, it must be assumed that the warden of the state prison will do his full duty to the end that the question of the prisoner’s sanity may be judicially determined.” In the Sloper case, there was no prior adjudication of insanity, but the opinion contains a clear expression of approval of the procedure thus far followed in the present case. Petitioner contends, however, that because a court of law determined that the defendant was insane, only a court of law can determine that he is now sane. This contention is clearly inconsistent with

section 3700 of the Penal Code and with the cases interpreting the provision of

section 1372 of that code similar to the provision of

section 3704. Sections 3700-3704 of the Penal Code provide for the adjudication, not of some continuing status, but only of the question whether the defendant is sane at the time of the hearing initiated by the warden. Moreover, the adjudication relied on by the petitioner did not purport to decide what the condition of defendant’s mind would be thereafter. There was no determination that defendant’s insanity was incurable, even if it is assumed that such a determination would have been within the court’s jurisdiction.

The defendant was found insane at that time, and his execution was suspended only until he recovered his reason.

It was the order of the court that the defendant be kept in confinement in the state hospital until he recovered his reason and “when said William Jerome Phyle recovers his reason, that the Superintendent of the State Hospital in which he is confined certify that fact to the Governor of the State of California for further proceedings as is required by law.” There is therefore no merit to the contention that the adjudication that defendant was insane at the time of this trial gave him a vested right to the status of an insane person thereafter or until a court of law determined that he is sane.

The petitioner contends also that the separation of powers provision of

section 1 of

article III of the California Constitution is violated by leaving the final determination of a prisoner’s sanity to administrative officers. The contention that the power to determine the question of restoration to sanity of such a person cannot be given to the superintendent has already been answered adversely in this state in People v. Superior Court, 4 Cal.2d 136, 146, supra, and People v. Rice, 83 Cal.App. 55, 60, supra. In these eases it was held to be within, the proper scope of the superintendent’s powers to determine the question of the restoration to sanity of defendants who had been adjudged insane before conviction. Thereafter the defendants were returned to the judge pursuant to

section 1372 of the Penal Code and their trial continued. The judge at that time could again have concluded pursuant to

section 1368 that it was doubtful whether the defendant was sane, and provided for a determination of the question in a proper judicial proceeding. (See People v. Farrell, 31 Cal. 576, 581, supra; People v. Rice, supra, at 61.) In this case that power and duty is given to the warden by

section 3701 of the Penal Code, for the defendant is returned, not to a court but to the warden. , Even if the warden’s power in this regard is judicial, there is no violation of

section 1 of

article III of the California Constitution, for

section 7 of

article X specifically provides that “Notwithstanding anything contained elsewhere in this Constitution, the Legislature may provide for the establishment, government, charge and superintendence of all institutions for all persons convicted of felonies. For this purpose, the Legislature may delegate the government, charge and superintendence of such institutions to any public governmental agency or agencies, officers, or board or boards, whether now existing or hereafter created by it.

Any of such agencies, officers, or hoards shall have such powers, perform such duties and exercise such functions in respect to other reformatory or penal matters, as the Legislature may prescribe.” (Italics added.) The delegation of power contained in the former sections of the Penal Code on this subject (§§ 1221-1224) was validated by the same

section of the Constitution in the following terms: “All existing statutes . . . purporting . . . to so delegate such government, charge and superintendence, to so prescribe such powers, duties or functions . . . are hereby ratified, validated and declared to be legally effective until the Legislature provides otherwise.” By moving these provisions from one part of the Penal Code to another, the Legislature did not change their effect. (Pen.

Code, § 10000.) Even if it is assumed that the power of the superintendent of the state hospital, to whom defendant was delivered, to determine whether defendant has recovered his reason is a judicial power, the foregoing provisions of the California Constitution authorize the delegation of this power.

Under the statutes the prisoner is delivered to the custody of the superintendent as a person convicted of a felony, and thereafter, so far as the superintendent’s authority over such a person is concerned the superintendent exercises not only the authority of an officer entrusted with the superintendence of an institution for convicted felons but the duties and functions prescribed in Penal Code,

section 3704. It follows that unless the warden of the prison in which defendant is incarcerated believes that defendant ,is now insane, no court of this state has jurisdiction to determine the question of his sanity. It has been suggested that this conclusion must be wrong on the ground that if the matter is left to the discretion of the warden, a circular process may begin whereby defendant will again be found insane, again sent to a state hospital, and again declared restored to sanity. It has therefore been suggested that only a judicial determination of this question at this time will prevent such circuity.

This suggestion is based on the assumptions that the warden believes that defendant is insane, that a jury would find him to be insane, and that the superintendent of the Mendocino State Hospital was in error—assumptions that this court cannot properly make. Moreover, it does not follow that a judicial determination of this question will prevent circuity.

If this court were to hold that defendant has a right to a judicial determination of the question of his restoration to sanity under some procedure not specified in Penal Code, sections 3700 to 3704, such a determination would be either that defendant is sane or insane. If the verdict is that he is insane, the defendant would have to be delivered to an institution and detained there until in a judicial proceeding he was found sane. If the verdict is that he is sane, the defendant would be delivered to the warden for execution, and the date for execution would have to be set again.

During the interval between this adjudication and the date for execution, the defendant may again become insane. Unless the warden is to execute an insane person in violation of Penal Code,

section 1367, it would be the warden’s duty, if he had good reason to believe that defendant was insane, to set in motion again the procedure for determining the defendant’s sanity. The duty of preventing execution of an insane person is given by statute to the warden and to the Governor, and even if it were held that defendant has a right to a judicial determination of the question of his sanity, the determination that he is sane at the time finally set for his execution must be made by the warden. The writ is discharged, and William Jerome Phyle is remanded to custody. Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred. In 1905 the provisions of 3704 were contained in

section 1224, which was repealed and reenacted in 1941 as

section 3704 with the addition of the last phrase that “the warden shall thereupon return the defendant to the state prison pending the execution of the judgment.”

Section 10000 adopted at the same time provides that, “The provisions of

Part 3 of this code [which includes sections 3700 to 3704], in so far as they are substantially the same as existing provisions relating to the same subject matter, shall be construed as restatements and continuations thereof and not as new enactments.” The addition of the last phrase to

section 3704 is clearly not material to this case or to the

interpretation of that

section with respect to the duties of the superintendent.