BART LUIS CARITATIVO, Petitioner, v. HARLEY O. TEETS, as Warden of State Prison, etc., Respondent, 47 Cal. 2d 304

McCOMB, J. This is a motion to dismiss an appeal from an order denying a petition for a writ of mandate and also for an order directing the issuance of the remittitur forthwith. Chronology i. Defendant’s conviction of two first degree murders was affirmed by this court February 1,1956. (People v. Caritativo, 46 Cal.2d 68 [292 P.2d 513].) ii. Petition for a rehearing was denied February 29, 1956. iii. Petition for a writ of certiorari was filed with the Supreme Court of the United States and denied June 4, 1956. iv.

On June 18, 1956, the death penalty was imposed on defendant and the date of execution set for August 31, 1956. v. On April 27, 1956, George T. Davis, attorney for defendant, was informed that the prison psychiatrists were of the opinion defendant was sane. vi. On May 24,1955, three psychiatrists on the medical unit of the California State Prison at San Quentin, to wit, David G. Schmidt, M.D., Chief Psychiatrist, M. M. Kirksey, M.D., and M. D.

Willcutts, M.D., Chief Medical Officer, advised the warden relative to defendant: “We are agreed he has some expansive grandiose ideas and feelings of persecution; but no delusions or hallucinations are elicited and he knows the crime of which he was convicted and sentenced to execution and we are agreed he is not insane, albeit he has a Paranoid Personality with some Schizoid and some Neurotic Elements.” vii. On March 30, 1956, Dr. Willcutts, Dr. Schmidt and Dr.

Kirksey, all on the prison staff, advised the warden relative to defendant: “He shows he is oriented well in all spheres, that he has a good memory and still gives some evidence of some expansive grandiose ideas and feelings of persecution. He has a Paranoid Personality with some Schizoid and Neurotic elements; but we are all agreed that he is not insane. ’ ’ viii. On May 2, 1956, Dr. Willcutts, Dr. Schmidt and A. D.

Kopac, M.D., Psychiatrist, all on the prison staff, informed the warden relative to defendant: “He knows the crime for which he is sentenced, but he does not know, or will not say definitely where his case is in the courts, but feels that Mr. Davis will take good care of his case. “This subject has a good memory, he is oriented in all spheres, knows right from wrong, is aware of the crime for which he was sentenced and for which he faces execution. He exhibits some grandiose ideas and feelings of persecution, but we are all agreed that he is not insane.

He has a paranoid personality with schizoid and neurotic elements.” ix. On August 7, 1956, Dr. Willcutts, Dr. Schmidt and Dr. Kopac advised the warden concerning defendant: “This subject has a good memory, is oriented in all spheres. He knows right from wrong and is aware of the crime for which he was sentenced and for which he faces execution. He exhibits many grandiose ideas and feelings of persecution; but we are all agreed that he is not legally insane.

He has a Paranoid Personality with many Schizoid and Neurotic Elements.” The record fails to disclose any evidence contradicting the findings of the doctors as set forth above. x. On August 30, 1956, defendant filed a petition for a writ of mandate in the Superior Court of Marin County seeking to compel the warden of San Quentin penitentiary to institute proceedings to determine the present sanity of defendant. The writ was denied by the superior court on the same date and a notice of appeal immediately filed with this court.

On August 31, 1956, a stay of execution pending the appeal from the order denying the petition for a writ of mandate was granted. This is the sole question necessary for us to determine: In view of the provisions of sections 3700 and 3701 of the Penal Code, will a writ of mandate issue to compel the warden of the state penitentiary to institute proceedings to determine the present sanity of a prisoner in his custody awaiting execution of the death penalty after the warden has determined that there is not “good reason to believe” such prisoner is presently insane? No.

The method of determining the question of the sanity of a person awaiting execution is controlled by the Legislature. The Legislature has provided in Penal Code

section 3700 that the courts shall not suspend the execution of a judgment of death. It has also provided in

section 3701 of the Penal Code for a judicial proceeding to determine the question of defendant’s present sanity only when the warden invokes such a proceeding. (In re Phyle, 30 Cal.2d 838 at 843 [2] [186 P.2d 134].) It is settled that “due process” does not prevent delegation of the duty of determining the sanity of a person awaiting execution of the death penalty to an administrative official, and judicial review of that officer’s determination is not required. (McCracken v. Teets, 41 Cal.2d 648 at 653 [7] [262 P.2d 561]; Solesbee v. Balkcom, 339 U.S. 9 [70 S.Ct. 457 at 459 [3], 94 L.Ed. 604]; Nobles v.

Georgia, 168 U.S. 398 at 405 et seq. [18 S.Ct. 87, 42 L.Ed. 515].) Any statements in Phyle v. Duffy, 34 Cal.2d 144 [208 P.2d 668], which imply a contrary view are overruled. For the reasons above stated the motion to dismiss the appeal is granted and the stay of execution heretofore granted is terminated. Let the remittitur issue forthwith. Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.

Section 3700 of the Penal Code reads: “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.”

Section 3701 of the Penal Code reads: “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.

Thereupon the court must at once cause to be summoned and impaneled, from the regular jury list of the county, a jury of 12 persons to hear such inquiry.” Justice Schauer, speaking for this court, with whom Chief Justice Gibson and Justices Shenk and Edmonds concurred, said in the cited case at page 653 [7]: “Petitioner asserts that he is denied due process of law if he is not accorded judicial review of the question whether there is good reason to believe that he has become insane.

It has been held that federal due process accords him no such right. (Citation.)” On page 654 of the same ease, Justice Traynor, with whom Justice Spence _ concurred, said: “Procedural due process does not prevent delegation of the duty of determining the sanity of a person under judgment of death to an administrative official and does not require judicial review of that official’s determination. (Citations.)”