*1 Dist., Div. June No. 4656. Second Two. [Crim. 1951.] KEDDY, Corpus. In re MURRAY on Habeas *2 for Petitioner. William W. Larsen (Los Ralph Roll, Attorney Angeles), Ernest and S. District Respondent. Bagley, Deputy Attorney, F. District McCOMB, application J. This isan for writ of habeas discharge custody seeking (a) petitioner the of from corpus, ground on that section 5501 of the Welfare and Institu the unconstitutional, (b) of petitioner tions Code is the release hearing superior on the bail the court determine petitioner psychopath" not. municipal on Facts: Petitioner was convicted the court exposure (Pen. (1) two counts misdemeanor: Indecent of (2) (Pen 311); and lewd and dissolute conduct § 647.5). court for a denied and the His motions new trial were certifying the to the suspended proceedings, further matter 5501, superior provisions the of section court 1950, p. (Stats. and Institutions Code as amended Welfare part 439), reads which “ the offense, When is convicted of a criminal (a) prosecuting or motion judge, motion, on his own on of the trial the by by of attorney, application or on behalf on affidavit the defendant, appears if the of court satisfaction believing person is a sexual probable there is cause for may adjourn meaning psychopath chapter, the this within may be, suspend sentence, the the case proceeding or the may certify hearing the and examination county per- superior court to determine whether ’’ chapter. meaning son is a sexual within the appealed appellate department of then Petitioner denying from for a superior the order his motion pending. now new which trial April 27, 1951, appeared superior in the On whereupon appointed were examine court, psychiatrists two hearing May 7, 1951, him was set for and later con- May 28, tinued to and he was application for bail was denied
Petitioner’s
217 custody remanded to the sheriff. He then filed the present application for a writ and this court released him on in the hearing upon $500 sum of this writ. Questions'. First: Is section of Welfare Institutions Code constitutional? Yes. Petitioner contends act is unconstitutional (1) because it equal denies to protection of the laws and not uniform I, 11, under article section (2) Constitution California1; deprives State of him liberty of his process without due of law in contravention I, 13, of article section Constitution2; places him in jeopardy contrary twice for the same offense article of the Constitution.3
Petitioner’s first and second claims have been settled ad- versely Supreme to his contention Court of the United States in Court, Minnesota ex rel. Pearson v. Probate U. S. S.Ct. L.Ed. 744, 745, 126 A.L.R 530], wherein the court held a similar statute the State of. of Minnesota such statute did not equal violate the protection clause Constitution *3 United process States or due clause thereof. petitioner’s
As contention, being third he is not placed twice jeopardy in same for the offense.
psychopath”
guilty
is not committed because he is
of a
crime.
A proceeding provided
for
section 5501 of
the Welfare
civil in
Institutions Code is
nature,
criminal,
not
person
and a
committed
being
thereof
is not
for
confined
commission
of a criminal offense but
because
has been determined that
he is a “sexual
re
psychopath.”
(In Moulton,-N.H.-
26,
[5-6]];
(D.C.),
A.2d
28
v. Overholzer
93 F.
Malone
[77
Supp.
[1];
647
In re
309
Kemmerer,
Mich. 313
N.W.2d
[15
652,
; People
653
Chapman,
218 See, also, et A.L.R. 3, page seq., April,
No. 126 clearly being seq.) petitioner Hence not 535 et placed jeopardy in twice for the same offense. Is entitled to be released on bail
Second: pending the whether or not is a “sexual determination of psychopath”?
Yes. provides The of California Constitution State “All shall be bail article capital able sufficient unless when sureties, offenses proof presumption great. evident or the Section 1272 of the Penal of California reads thus: “After punishable death, conviction of an offensenot defendant appealed may who bail: ... 2. As a has be admitted to right, appeal judgment matter imposing when the from a imprisonment (In Torres, of misdemeanor. ...” re cases Cal.App.2d 579, P.2d [1] [182 Bray Torres, supra, page In re at 581 thus Mr. Justice emphatically states the rule: judgment imposing imprisonment from appeal
“On entitled as a case, a misdemeanor bail defendant (Pen. 1272.)” right. matter of Constitution, it is clear under the the Penal Hence Code and the decided cases was entitled pending denying his motion bail from order violating for a new trial after conviction of sections were Penal Code which misdemeanors. 647.5 question remaining as to he was This leaves hearing of whether he was entitled to bail psychopath.” a “sexual argues an insane
Respondent that since psychopath,” petitioner, as a “sexual bail, be held without analogous principle an to that and therefore on was insane held insanity he could be without cases applicable in a “sexual of whether or he is determination psychopath.” fallacy argument is twofold: *4 person. (Peo
(1) psychopath” is an insane not “sexual P.2d Cal.App.2d 103, ple Tipton, v. discussing supra, said in People Tipton, the court subject: psychopath be sexual “But one who is declared to chapter insane; 4 of the thereby adjudged be nor does contemplate. one so While Welfare and Code Institutions adjudicated under Penal Code sections 1368 an insane against charge proceeded to 1372 cannot be on a criminal until by sane, imposed becomes such condition is sections no provide of the Welfare and which for Institutions Code hospital commitment psychopath of a to a state sexual adjudicated psycho- treatment. One who been a sexual has path insane, has not been under pro- found visions of section 5502.5 of the Welfare Institutions superintendent hospital when the of the state has opinion notified the court that in has by not recovered from his and will benefit condition further treatment, disposition his return to court for further specifically provided.” (Italics added.) case any attempt analogy
Therefore to draw an between section dealing 5501 of the Welfare and Institutions Code with a psychopath” seq. and section 5040 of the et Welfare dealing obviously persons Institutions insane since entirely untenable the code sections deal separate persons. and distinct classes of people through the State of California provided
their Constitution have article persons by “all shall be bailable sureties, sufficient unless for capital proof offenses when the presumption or the evident great.” (Italics added.) people
This mandate legally of the cannot be set aside by judicial civil, legislative government. branch of the It people, sovereign, will observed that the who are have provide seen fit to exception, wit, that with but one where a charged capital offense, been with a all has right. Irrespective entitled to bail as a matter of villainy of the accused of his offense, heinousness with- regard public opinion, personal out views of an individual officer as to the wisdom of binding qualification provision, provision upon without processes legally until people have inherited courts the constitutional mandate. erased
Only by principle are strict adherence to this we assured guaranties perpetuity of the Constitution in equal many there are administration laws where differing degrees age, experience judges education, background. permanence judicial all insure the our free institutions
To must conform with the criteria established officers organic law. *5 above, beyond exempt
No individual or official is or Constitutions, from the mandates state and federal. the. judicial by If do to pledge officers not abide their solemn protect Constitution, and defend the as well as to observe prescribed expect the thereby, limitations we from the must only average contempt citizen for our most cherished in- legal concepts. stitutions and If such event should occur decay republic, gov- result will be inevitable by men—not Then, democracy ernment law—will result. will be abased and will drench the land. If the totalitarianism guaranties wrong, change people let judges legislators. wrongs them—not or Two cannot make right. a
History beyond a doubt that a has demonstrated guaranty as is set forth in article Con- necessary protection of citizen, for the stitution preserved Any at judicial should be all hazards. that it give loyalty refuses to ideal official who this because charged feeling of revulsion at nature of the offense against does the accused either not conceive the doctrine in meaning profanes its full or he the hallowed words of the Philadelphia patriots who convened Henley, Cal.App. 933], In re In the case of being charged the defendant had been arrested the extent that he had addicted to the use of stimulants to power 2185'c statute, self-control. The lost appears “Whenever it part read in Political by magistrate of a county, satisfaction a affidavit to the in- far city county, is so addicted that have temperate or stimulants as to lost use of narcotics subject inebriety, power dipsomania of self-control to some officer service peace he must and deliver issue warrant, analogous the “sexual statute is It evident that such case, court. In the before this cited
psychopath”
statute now
pending a
holding
was entitled to
appropriate
re-
made these
hearing,
Burnett
Mr. Justice
magistrate,
bail was denied
said
appears
“It
marks :
any
reason
ground
appear,
does
nor
upon what
right
it
matter of
except
is a
order
advanced here
that ‘All
of the state
provision of the constitution
under
sureties, unless
sufficient
persons shall be bailable
presumption
or the
proof
is evident
when
capital offenses
salutary measure,
is wise and
6.) This
great.’
(Art. I, sec.
scope
sufficiently comprehensive
include a
person charged
being
right as
an inebriate. His
to bail
certainly
should
not more restricted
that of
be
than
grave
contingency
ques-
accused
crime.
the latter
no
except-
capital
tion would
raised
case of a
offense as
provided in the constitution.
‘‘
where,
There
for the
instances under
statute
*6
safety of
society,
proper
the individual or of
would
to
deny
showing
bail,
made,
pro-
but unless such a
is
the said
apply.
of
held,
think,
vision
the constitution should be
we
provided
It
is
said
the
statute that
officer
whom the
warrant of arrest
is delivered must ‘arrest arid detain such
hearing
until
This,
and examination
be had.’
can
course,
be read in connection with said
must
provision,
legislative
as no one would contend that
the
en-
operate modify
repeal
actment could
any portion
of the
constitution.
“
petitioner
It is
that
ordered
be admitted to bail in the sum
examination,
pending
the
$250
conclusion was
Supreme
similar
reached
Court
Romero,
New
Ex
Mexico
Parte
Nor is there force in by affording that rights petitioner guaranteed him people through duly adopted State of California their Constitution person who, be released on bail there for his own or safety, should be held confinement. Sections seq. provides 5040 et of Welfare and Institutions Code adequate full,, complete procedure and protection for the petitioner society if he is in fact insane. The district at torney fully apprised is peti the information relative condition, mentally if tioner’s and is latter ill the district attorney any person may other have him confined seq. section 5047 et of Welfare and (In Westcott, re Cal.App. Institutions Code. 575, 577 [270 P. petitioner permitted that
It ordered is to remain on superior pending the determination of the court as to psychopath.” he is a whether or not Moore, J., concurred.
WILSON, portion I concur in J. majority opinion upholds constitutionality which of section 5501 the Welfare Institutions Code and dissent from that
portion is holds entitled to bail which while being psychopath as from held examination a sexual judgment admitting him to bail. charges upon which
Insofar the misdemeanor as municipal concerned, was convicted in the court are he is judgment entitled to bail from the question but conviction, is not the before this court. upon which this to decide is The matter court called hearing upon released on bail entitled to be proceeding allegation psychopathy. to his sexual as entirely whether he is a to determine sexual apart charges from separate municipal the criminal Upon court. conviction he was certified to the there superior court in order that that determine the (cid:127) psychopathy deal ac- matter of his with him sexual cordingly. treating psycho
One error of the
lies
proceeding
and a
as
path
penal
statute
thereunder
law
although
proceeding
it is not. Such a
a criminal matter
inquest concerning
a “civil
prosecution
not a criminal
(People
mental condition and sexual deviations.”
defendant’s
v.
26];
301 Mich.
N.W.2d
Malone
Chapman,
F.Supp. 647.)
is a civil
Overholzer, 93
It
*7
regarded
punishment.
as a sentence
commitment is not
-
-
28].)
26,
A.2d
(In Moulton,
re
N.H.
Con
[77
relating
are
all
provisions
to criminal trials
not
stitutional
under
proceedings as
consideration
pertinent
to such
punitive,
of
and remedial instead
the statute
curative
since
is
criminal
the constitutional
as it is not a
statute
and inasmuch
ap
against compulsory self-incrimination
not
inhibition
900,
1249
S.W.2d
(State Green,
897,
360 Mo.
v.
plicable.
[232
901].)
against under such a statute
person proceeded
of
He is an unfortunate
punished
because
condition.
his
mingle
society
to
and
cured is not fit
person and until
until it is
both for him and
institutionalized
safe
should be
(In Kemmerer, 309 Mich.
be released.
re
society
for
that he
653].) An
under
sexual
652,
examination
313
N.W.2d
[15
adversary
criminal nor an
is neither a
psychopath statute
character as
is conducted
the state
its
proceeding
Masters,
The purpose foregoing all the provisions, whatever tendency be the abnormal person, is twofold: (2) protect the afflicted injury individual from to himself to remove him from contact with the so that he will not be a the safety menace to or the health of others. Ad- mitting such a to bail would frustrate the intent of the statute between the date of admission to bail and the date hearing theory commitment. If the opinion accepted should be the law the state he would bail pending entitled to and thus would abe danger continued to himself and menace all others with come in whom contact. I bring myself cannot believe that a sexual whose tendencies are and abuse little children permitted maltreat should be to roam the streets and inflict upon himself other victims while the verily society which is intended to remove him from through progressing courts. fallacy theory of such a well peti illustrated *8 as set tioner’s record forth in the order of detention. The municipal there certifies that he was in that convicted court of a violation of subsection of section 311 of Penal (indecent exposure) Code and subsection 5 of section (vagrancy—lewd 647 of the Penal Code per dissolute son). The court further certifies further “It
appears (then in aged 13), 1941 defendant committed perversion against numerous acts sex various children (Penal 288) (Penal Code Section and animals Code Section 286), masturbator; was an habitual and was committed to juvenile (m), (k) authorities to subsections1 Code; Angeles Section Welfare and Institutions that Los Department January 21, 1951, part: Police records of state personal juve ‘Arrestee’s character and habits . . aWhen developed perverted nile, habits, masturbation also excessive drives, masturbates, develop psychopathic sex still and could ’ granted May probation tendencies. That was defendant Angeles County Santa Monica Branch the Los Superior years, Court five of Penal violation 211 (robbery); Section
Manifestly person a a record sex offenses and perversions person sex as is indicated above is a fit large. be at statutory “mentally persons” definitions of ill
When the psychopaths” analogized “ will be and “sexual found very ‘Mentally persons’ difference. ill there is little persons who are of such mental condition that means without they supervision, care or restraint would be treatment, or dangerous person property themselves or or might be to the (Welf. 5040.) used in & Inst. “As others.” any afflicted, psychopath’ person means who is chapter ‘sexual predisposing offenses, in a form commission of constituting him degree to the health or menace others, any following (a) conditions: safety of disorder, (b) Psychopathic personality, disease or Mental mentality.” departures (§5500.) from normal (c) Marked “mentally person” ill foregoing From definitions dangerous himself or to the or who one psychopath” is one who others, and a “sexual property safety of with the conditions others health menace disorder, psychopathic per- mental either disease be, class whichever sonality or both. and is deemed or disorder with a mental condition afflicted to others. dangerous and a menace to be requires affidavit for Furthermore, section substantially to be of a sexual detention illness affidavit mental specified form Legislature to and Throughout intended the statute on mentally disordered groups both place did and detention. apprehension as to basis same theory correct their of the court If the *9 person every irrespective entitled of his condition and without reference to the fact that he is obviously menace persons, mentally person to other then ill who has been apprehended provided and detained in as sections 5050 and 5050.1 of the Welfare and Institutions Code would be entitled might be, mentally bail no matter how violent he since such person ill deemed to until be insane he has had a hear- ing adjudicated by (Welf. and has been so the court. & Inst. 5041.) person type petitioner, as indicated of detention, order no society less menace to and the violently person than a who, insane intermediate his apprehension regarded and commitment, only mentally yet ill, kept latter is from the confinement time he is custody. taken into No case has been cited, research has charged disclosed none, which a being mentally ill or insane has been held to be entitled to be released on bail hearing. Henley, In re Cal.App. 933], relied on in opinion, the court charged held that a person intemperate with the use of stimulants was entitled to bail question The examination. dangerous was to himself or a menace to others was not However, involved. obviously realized that its regarded decision case should be as an absolute applicable persons similarly rule charged to all when it said: “There where, instances under this statute for safety society, of the individual or of proper would be deny bail” in the showing such a absence should admitted to bail. order of detention clearly instant safety shows that liberty society superior he should be restrained of his until the co an proper disposition art conducts examination makes of him. discharge petition
I would for a writ of corpus habeas custody remand the sheriff to be dealt according superior to law the court.