ANNA M. PHYLE, Appellant, v. CLINTON T. DUFFY, as Warden of the State Prison, etc., Respondent, 34 Cal. 2d 144

EDMONDS, J. William Jerome Phyle’s conviction of murder and sentence to death was reviewed and affirmed upon appeal. (People v. Phyle, 28 Cal.2d 671 [171 P.2d 428].) In December, 1946, two days prior to the time set for his execution, the warden of San Quentin Prison, as authorized by

section 3701 of the Penal Code, stated to the District Attorney of Marin County that there was “good reason to believe” Phyle was insane. In a proceeding to determine that question, a jury adjudged Phyle to be insane, and he was committed to the state hospital. Less than one month later, the superintendent of the hospital certified to the Governor that Phyle had recovered his sanity. He was returned to prison and the execution was set for the following May. Shortly before that time, a petition for a writ of habeas corpus was filed with this court. The writ issued and the execution was stayed.

Subsequently the writ was dismissed and Phyle was remanded to custody for the execution of the sentence of death. (30 Cal.2d 838 [186 P.2d 134].) A petition for rehearing was filed, and denied. March, 1948, was then fixed for execution. Again, a new legal proceeding was commenced and Phyle’s petition to the United States Supreme Court for certiorari and stay of execution was granted.

Upon the further consideration of the matter, the writ of certiorari was dismissed. (334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494].) A third date, September, 1948, was then fixed for the execution of Phyle, but a few days before that time, Phyle’s mother, on his behalf, filed in the superior court a petition for a writ of mandate to compel the warden to institute a proceeding for the determination of his sanity by a jury in accordance with the provisions of

section 3701 of the Penal Code. An alternative writ was issued and a stay of execution granted. Upon a trial, the court found that there was no reason to believe Phyle was insane. The alternative writ was discharged, and the stay of execution was vacated. The present appeal is from that judgment. Prior to the filing of any briefs, the attorney general moved for the following relief in the alternative:

(1) To dismiss the appeal as frivolous and taken solely for delay;

(2) To affirm the judgment;

(3) To advance the cause on the calendar and submit the same for decision; or

(4) For such other relief as may be proper. Following the argument upon the motion, the appeal was advanced for hearing on the merits. As grounds for reversal of the judgment, Phyle asserts: (1) that since he was declared insane by the verdict of a jury, he is presumed to be insane until a jury finds to the contrary;

(2) section 3704, if constitutionally construed, gives him a right to a trial by jury on that question; (3) the failure to grant a jury trial in the present proceeding was a violation of due process under the Federal Constitution; (4) any procedure denying a full judicial hearing, as provided by the laws of the State of California' is a denial of due process under the guarantee of the Federal Constitution; and

(5) section 3704 of the Penal Code is constitutional only if construed as requiring a trial by jury upon the issue of restoration to sanity. In substance, Phyle’s position is that both under California law and the requirements of federal due process, he is entitled to a trial by jury to determine whether he has been restored to sanity. After

section 3704 of the Penal Code was construed by this court adversely to Phyle in the habeas corpus proceeding (In re Phyle, 30 Cal.2d 838 [186 P.2d 134]), the Supreme Court of the United States granted a writ of certiorari “because of the serious nature of the due process contentions presented in the petition.” The questions presented, as stated by the court, were “that execution of an insane man is offensive to the fundamental principles of life and justice which lie at the base of all our civil and political institutions. Adamson v.

California, 322 U.S. 46 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223], Carter v. Illinois, 329 U.S. 173 [67 S.Ct. 216, 91 L.Ed. 172], and . . . that life shall not be taken by the state as the result of the unreviewable ex parte determination of a crucial fact, made by a single executive officer. See Ng Fung Ho v.

White, 259 U.S. 276 [42 S.Ct. 492, 66 L.Ed. 938].” But the jurisdiction to determine these issues was expressly limited as follows: “It is not appropriate for us to pass on such constitutional questions in this habeas corpus case if, as the California attorney general contends, there is a state remedy by mandamus available to petitioner under which he can invoke judicial action to compel the warden to initiate judicial proceedings, and in which mandamus proceedings the court will hear and consider evidence to determine whether there is ‘reason to believe’ that the petitioner is insane. ’ ’ After an analysis of the California statutes and decisions, the writ of certiorari was dismissed with a reference to In re Phyle, supra, which it was said, held “that neither habeas corpus nor any other remedy is available to test sanity of a condemned defendant, except the remedy under

section 3701 which only the warden can institute. Hence, so far as here appears, mandamus to compel action by the warden is the only available remedy.” And the court concluded: “We cannot say at this time that California’s remedy by mandamus will be less than a substantial equivalent of one which authorized him to apply directly to a court for full hearing . . . [and] in this situation we find no federal constitutional question presented which is ripe for decision here.” Mr.

Justice Frankfurter’s concurring opinion likewise viewed the situation as one of local procedure: “The Court now finds that all that the California Supreme Court did was to hold that as a matter of California procedure the petitioner’s claim could not be passed on by the direct remedy of habeas corpus, but that there is available a special local remedy, labeled mandamus, whereby the petitioner can judicially test his present sanity.” (Emphasis added.) Otherwise stated, certiorari was granted because Phyle claimed he was to be executed after a determination as to his sanity by a hospital superintendent with no further proceeding open to him, and the court dismissed the writ when it appeared that there is a way whereby one in his position may continue to press the right to prove present insanity and obtain a judicial determination of the question.

As indicated in the opinion of Mr. Justice Frankfurter, it is clear that the claim which must be subject to judicial review is “present sanity”; it is presently that Phyle is to be executed, and it is only his threatened execution which could compel a judicial hearing. However, Phyle’s counsel insists that the Supreme Court, by its opinion, has directed this court to review the determination by the hospital superintendent, which was the question decided in the habeas corpus appeal. The argument wholly ignores the issues here involved.

In neither opinion in the Supreme Court is there any holding or implication that Phyle is entitled to a trial by jury as a matter of right for the purpose of reviewing the finding of the hospital superintendent concerning restoration to sanity. In the case of In re Phyle, 30 Cal.2d 838 [186 P.2d 134], this court determined that the law of California does not give one a right to such a review, and the United States Supreme Court, in analyzing its decision in Nobles v. Georgia, 168 U.S. 398 [18 S.Ct. 87, 42 L.Ed. 515], rejected the argument that there is a right to a trial by jury under such circumstances.

It said: “A condemned defendant cannot automatically block execution by suggestions of insanity, and ... a state tribunal, particularly a judge, must be left free to exercise a reasonable discretion in determining whether the facts warrant a full inquiry and hearing upon the sanity of a person sentenced to death.” Assuming, therefore, that due process of law requires a judicial hearing upon the issue of present sanity of a person condemned to execution, this proceeding in mandate accords Phyle such hearing.

By it, he has been given a judicial determination upon the only issue he could properly raise, and it is significant that the judgment is not challenged upon the ground of the insufficiency of the evidence to support it. In addition to the points presented in the brief, at the oral argument counsel for Phyle argued that the law of California requires a trial by jury in a proceeding brought to compel the warden to initiate a hearing on the issue of a prisoner’s sanity in accordance with the provisions of

section 3701 of the Penal Code.

Section 7 of

article I of the California Constitution provides: ‘‘The right to trial by jury shall be secured to all, and remain inviolate.” That right, however, is only such as existed at common law. (Pomeroy v. Collins, 198 Cal. 46 [243 P. 657]; People v. Powell, 87 Cal. 348 [25 P. 481, 11 L.R.A. 75]; People v. Bruneman, 4 Cal.App.2d 75 [40 P.2d 891]; Estate of Escover, 108 Cal.App. 697 [292 P. 167]; Gregory v. Hecke, 73 Cal.App. 268 [238 P. 787].) It has always been held in this state that the right of jury trial does not extend to special proceedings (Vallejo etc. R.R. Co. v.

Reed Orchard Co., 169 Cal. 545 [147 P. 238]), and mandate, being a special proceeding, is not subject to the constitutional requirement (Hutchison v. Reclamation District No. 1619, 81 Cal.App. 427 [254 P. 606]), although the Legislature has provided that, where the answer raises a question of fact as to an essential matter, “the court may, in its discretion, order the question to be tried before a jury.” (Code Civ.

Proe., § 1090.) In the present case, Phyle did not request the court to submit any issue raised by the petition to a jury, nor, had such request been made, would it have compelled an affirmative ruling because a trial by jury of issues of fact in a mandate proceeding is wholly within the sound discretion of the trial judge. Instead of making such a request, Phyle’s counsel placed themselves in the rather anomalous position of petitioning for a writ of mandate and then demanding that the writ issue as a matter of right without offering any evidence whatever.

At the outset of the trial, counsel for Phyle said, “I might state our position. I do not wish to offer any evidence at this time. I do not think it is the proper time to offer evidence.” After a discussion of the opinion in the prior proceedings brought by Phyle, the trial judge asked: “Are you going to submit any evidence or is this argument?

As I understand it at the present time on this petition for mandate, all you are asking is that the Warden of the State Prison certify that he believes the defendant to be insane.” Following counsel’s affirmative reply, the court continued: “Therefore, as . . . he has refused to certify, we can take evidence to determine whether or not there is reasonable ground for the Warden’s opinion, that is as far as this writ is concerned.

If you wish to present evidence, you may.” This offer was declined by counsel who stated: “I don’t believe any evidence is necessary your'honor.” But the attorney general insisted upon the presentation of evidence.

He said: “If your Honor please, because of the gravity of the matter, before I would be willing to close the book on it, I would want the Warden to take the stand and have him give the reasons that impel him to the conclusion that he has reached.” Counsel for Phyle again stated his position that the issue before the court for decision was one of law: “I think what is before this Court [apparently referring to the prior judgment declaring Phyle insane which was mentioned but never offered in evidence] is res adjudicata as to the question of insanity—certainly at that time.” It is clear, therefore, that counsel was acting on the assumption that by this proceeding in mandate, the question as to Phyle’s insanity as of December, 1945, and January, 1946, was being opened up, and throughout the entire mandate proceedings, he refused to meet the issue of present sanity as the subject of inquiry.

Although there was no evidence offered by Phyle to support the petition for the writ, the court heard witnesses called by the attorney general and cross-examined by counsel for petitioner. Finally, two witnesses testified for Phyle. Therefore, notwithstanding the theory followed by petitioner’s counsel, a full and fair hearing was held upon the issue of Phyle’s sanity at that time. The record has been examined and discloses that the findings of the trial court are fully supported by the evidence.

Warden Duffy appeared as a witness and testified that he had visited Phyle on a number of occasions; it was his opinion that Phyle was presently sane, and there was no reason he knew of to believe that Phyle was insane. This conclusion, he stated, he reached upon the basis not only of his personal observation, but also from reports from six different psychiatrists, all of whom had examined Phyle and found him sane. Two of these six psychiatrists were called as expert witnesses by respondent, and each testified that, in his opinion, Phyle was sane.

They both reported that Phyle knew he was in San Quentin convicted of the murder of Frazee, knew he was under judgment of death, knew that his execution had been stayed by the mandate proceeding, was conversant with the facts of his original trial, and was not suffering from any hallucinations or delusions. One of these experts was Dr. Walter Rappaport, the hospital superintendent who issued the certificate of restoration to sanity after the judgment entered upon the verdict of a jury to the contrary. Upon cross-examination, Dr.

Rappaport explained that shortly after Phyle’s commitment to the hospital, he “told me very frankly he had faked the whole thing and he was surprised that Dr. Schmidt [the prison psychiatrist] was fooled but not surprised that he fooled the warden. ... He said other prisoners conducted examinations and that naturally if they are friendly and want to help you they would indicate to you what you should say and what the answer should be. He was very frank. ’ ’ At this point, counsel for petitioner called Dr. David G.

Schmidt, the prison psychiatrist, who testified that, although at one time he had been convinced that Phyle was insane, he was presently certain of Phyle’s sanity. This testimony was unshaken in spite of severe cross-examination. Mrs. Anna Phyle, the petitioner and mother of Phyle, then testified.

The most direct testimony she gave was that, after his return from the war, her son acted queerly and she “couldn’t figure him out . . . he was almost violent [and she] was really afraid of him.” She then stated that “he was improved some but when he left and committed this crime, he was not in his right mind, he was mentally sick.” (Emphasis added.) Such testimony falls far short of a compelling reason for a conclusion of present insanity.

The record, therefore, fully supports the determination that the warden “does not have, nor is there any good reason to believe that said William Jerome Phyle has become insane or is presently insane. ’In such circumstances, the trial judge could not have done other than discharge the alternative writ. Whatever may have been Phyle’s mental condition at other times, the legislative concern expressed in

section 1367 of the Penal Code is that the state shall not execute a person who is insane. The United States Supreme Court indicated that the due process clause of the Fourteenth Amendment requires a hearing upon that question when it is properly presented for consideration. Phyle was afforded the opportunity to “judicially test Ms present sanity” and no legal ground has been shown for disturbing the finding adverse to him. In order that there be no misunderstanding as to the scope of this holding (see Young v. Ragen, 334 U.S. 810 [68 S.Ct. 1013, 92 L.Ed. 1742], following Loftus v.

Illinois, 334 U.S. 804 [68 S.Ct. 1212, 92 L.Ed. 1737]), the law of California, as it has heretofore been stated, is as follows: The case of In re Phyle, 30 Cal.2d 838 [186 P.2d 134], held that “there is no authority . . . for the proposition that [a condemned] 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.” The United States Supreme Court granted certiorari, but later dismissed the writ upon procedural grounds intimating that due process of law requires some sort of judicial hearing upon the issue of the present sanity of a person under sentence of death. (Phyle v.

Duffy, 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494].) Because of the insistence of the attorney general that mandate is an available remedy, the court found “no federal constitutional question ripe for decision.” Otherwise stated, until Phyle is finally and unequivocally denied a judicial hearing in any form, a determination as to whether there is a constitutional right to such a hearing would be premature. After that case was decided, the claim of insanity made on behalf of one Eggers, then under sentence of death, came to this court by an appeal from a denial of a writ of mandate by the trial court.

The remedy of mandate was utilized to compel the warden to bring Eggers before a jury for a determination as to his sanity under the procedure specified by

section 3701 of the Penal Code. The judgment denying the writ was affirmed (Williams v. Duffy, 32 Cal.2d 578 [197 P.2d 341]) but without any express determination that mandate is an available remedy. Certain statements made in deciding Phyle v. Duffy, 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494], seemed to indicate that there was some question as to the soundness of the conclusion of this court in the first Phyle case (In re Phyle, 30 Cal.2d 838 [186 P.2d 134]). Because of this uncertain situation, this court, in deciding Williams v.

Duffy, supra, assumed the necessity of the remedy and concluded, upon the merits, that the evidence was insufficient to show any good reason to believe Eggers was insane. The decision in the present case has the same basis, for the record includes no evidence tending to show any reasonable foundation for a belief that Phyle is insane.

If, therefore, it is assumed that due process of law requires a judicial inquiry concerning the issue as to sanity, necessarily the conclusion reached in the decision of In re Phyle, supra, is incorrect, and the question for determination here would concern the remedy or remedies available to a person in Phyle’s position. In turn, the particular relief sought by Phyle would be the decisive factor. The normal method of reviewing the legality of a prisoner’s detention is by writ of habeas corpus. (Pen. Code, § 1473; In re Bell, 19 Cal.2d 488 [122 P.2d 22]; 13 Cal.Jur. 216; cf. Loftus v.

Illinois, 334 U.S. 804 [68 S.Ct. 1212, 92 L.Ed. 1737]), and where habeas corpus is available and adequate it is the exclusive remedy and mandate will be denied. (Irvine v. Gibson, 19 Cal.2d 14 [118 P.2d 812]; Ross v. O’Brien, 1 Cal.App.2d 496 [36 P.2d 1108].) Certainly, in the absence of a particular statutory remedy, the procedure of habeas corpus would satisfy any assumed requirement of judicial hearing upon the issue of the present sanity of a condemned prisoner. However,

section 3701 of the Penal Code provides that where there is good reason to believe a condemned prisoner is insane the warden must institute a proceeding directed to obtaining a jury trial of the issue of his sanity. Due process does not require such a trial. (Phyle v. Duffy, 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494]; Nobles v. Georgia, 168 U.S. 398 [18 S.Ct. 87, 42 L.Ed. 515].) Its basis is entirely statutory, and the determination by a jury may be obtained only when the proceeding is instituted by the warden.

Mandate is the proper remedy to compel a public officer to perform an official duty, and it may be had not only upon a failure to exercise a duty but also where the officer’s refusal to do so constitutes an abuse of discretion. (McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 394 [159 P.2d 944].) Where a prisoner seeks to invoke the statutory remedy provided by

section 3701 of the Penal Code, mandate is the only available proceeding. Thus, upon the assumption that any judicial hearing as to sanity must be afforded one under sentence of death, there are two remedies, each directed to an exclusive form of relief. To acquire a simple judicial determination of the fact of sanity, habeas corpus is the proper and exclusive remedy. But to obtain a jury trial of that issue, as provided by

section 3701 of the Penal Code, mandate is the only available and adequate remedy. As stated by Mr. Justice Black: “In view of this mandatory obligation [under Pen. Code, § 3701] upon the warden to initiate proceedings if ‘there is good reason to believe’ a defendant sentenced to death is insane, it would be somewhat anomalous, to say the least, if California courts were wholly without power to correct an executive agent’s abuse of authority in a matter of such significance as the execution of insane persons.” (Phyle v.

Duffy, 334 U.S. 431 [68 S.Ct. 1131, 1135-36, 92 L.Ed. 1494].) Throughout the habeas corpus proceedings and the one now under review, Phyle has sought only a jury trial. To obtain such relief, his proper remedy, if any is available, is the proceeding for mandate here under review. But upon the application for the writ itself he is not entitled to a trial by jury; only when he has obtained the writ may he have such a trial, and having failed to show any “good reason” why the warden should initiate an inquiry, the judgment denying the remedy allowed by

section 3701 of the Penal Code must be affirmed. It is so ordered. Gibson, C. J., and Shenk, J., concurred.