Opinion
I
These three cases all involve the validity of an order of the trial court, in a proceeding under section 1368 of the Penal Cоde, to determine the competency of defendant Campbell to stand trial on a charge of armed robbery. The right of a defendant, committed for
*462
observation and treatment under such an order, to appeal was determined by the Supreme Court in
People
v.
Fields
(1965)
II
Defendаnt was duly charged with armed robbery. He pled not guilty. Because of a conflict of interest on the part of the public defender, private counsel, John Lynch Henning, Esq., was appointed to represent him. That attorney moved for, and secured the apрointment of, Doctors Skrdla, Coburn and Hoffman, under sections 730 and 1017 of the Evidence Code, to examine defendant. After securing their rеports, Mr. Henning moved, under section 1368 of the Penal Code, for a hearing as to defendant’s competency to stand trial. Over defendant’s objection, Mr. Henning and the People waived jury trial and the hearing proceeded before Judge Leetham alоne.
Over the objections of defendant that the attorney-client privilege was being violated, the court permitted Mr. Henning to call Dr. Skrdla, who testified that defendant “is incompetent under Section 1368 of the Penal Code because he is not able to ratiоnally cooperate with counsel in presenting a defense even though he is aware of his legal status.”
The prosecution called Doctors Coburn and Hoffman; Mr. Henning objected, raising the attorney-client ground, but defendant expressly waived that objection. The court permitted both doctors to testify.
Dr. Cobum’s testimony was somewhat equivocal. He stated as his opinion that defendant “has the capacity to both understand the nature and quality of the proceedings and to cooperate in a ratiоnal manner with counsel in presenting a defense,” but that the capacity to cooperate is “not completely vоlitional” but that “by a very slight margin that it is volitional but it is not by any means predominately or the vast majority volitional.”
*463 Dr. Hoffman testified that, in his opiniоn, defendant “was fully competent and able to participate in his own defense in a rational manner” and that he had the сapacity to make a decision, a choice as to whether or not he will cooperate with his own counsel.
Aftеr this testimony, and argument by counsel, the trial court said: “In other words, I am prepared to find here that I think he could cooperate but I have to state that he isn’t cooperating and that there is evidence of substance to indicate that he cannot cooperate.”
The trial court’s ultimate ruling was couched in these words: “. . . presently in this particular case there being whаt appears to be evidence of substance as to the incompetency of the defendant to stand trial in view of thе findings previously made, I shall now suspend proceedings in this cause and the defendant will be committed under the terms of Penal Code Sеction 1368 to the Department of Health the Court believe [szc] that: ‘A, the defendant either for volitional or nonvolitional reasons is unwilling to and is not cooperating with his counsel; ...’”
III
At the time of the proceedings in the trial court it was unclear whether a defendant, in a case under section 1368, was entitled to a jury trial. However, we conclude that that right is now established in this state. In
People
v.
Feagley
(1975)
IV
The admission of Dr. Skrdla’s testimony, over the objection of defendant, was error. While the psychiatrist-patient privilege was not applicable, since defendant’s mental state was in issue, the attorney-client privilege, relied on here by defendant, was fully applicable.
2
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(People
v.
Lines
(1975)
V
The trial court applied the wrong standard of proof. Under subdivision (f) of section 1369 of the Penal Code, effective shortly before the trial court proceedings, “It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that he is mentally incompetent.” The findings of the trial court, above quoted, fall short of that test.
VI
The trial court seems to have beеn in some confusion as to the effect of the obvious fact that defendant was a most uncooperative client, insisting on intеrfering with his counsel’s presentations and on interjecting matters that his counsel thought were well ignored. The trial court remarked at lеngth on that subject. But the test, in a section 1368 proceeding, is competency to cooperate, not coopеration. As his appellate counsel points out, other procedures, under other provisions of law, apply if a defendant becomes too obstreperous or too uncooperative; commitment under section 1368 is not the remedy. On any rеhearing, the distinction should be more clearly observed.
In Grim. No. 27020, the order appealed from is reversed; in Crim. No. 27098, the appeal is dismissed; in Civ. No. 46415, the petition for a writ of mandate is denied.
Files, P. J., and Jefferson, J., * concurred.
Notes
Fields; was decided under former section 963 of the Code of Civil Procedurе. The language of the present provision (§ 904.1) is comparable.
That the reports were to be confidential is clear frоm the record; we quote the applicable part of the proceedings:
“THE COURT: You want doctors appointed?
“MR. HENNING: Yes. But I would prefer they were confidentiаl reports.
“THE COURT: All right. That way I won’t even see them, and the district attorney won’t even see them.”
Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.