57 Cal. App. 3d 336 | Cal. Ct. App. | 1976
Opinion
Petitioner on October 2, 1973, was committed to Atascadero State Hospital pursuant to the provisions of section 1026 of the Penal Code, following a finding that he was insane at the time he committed an assault in violation of subdivision (a) of section 245 of the Penal Code. By his petition for habeas corpus he sought review of proceedings under subdivision (c) of section 7375 of the Welfare and Institutions Code
The petition originally filed in the Second Appellate District was transferred to this district by the Chief Justice at the request of the Presiding Justice of Division One of the former district. We issued an order to show cause directed, as amended, to the trial court to show cause why the relief prayed for by petitioner should not be granted and appointed counsel for petitioner. The Attorney General filed a return, petitioner’s counsel filed a reply and the matter was set for hearing.
Shortly prior to the hearing we were advised by petitioner’s counsel that petitioner had secured his release on parole. She requested
The record reflects that on April 22, 1975, the medical director certified that petitioner would benefit from parole.
The order to show cause, having served its purpose, is discharged, and the writ of habeas corpus is denied.
Molinari, P. j., and Elkington, J., concurred.
Subdivision (c) of section 7375 then provided: “(c) Whenever any such person has been confined in a state hospital for 90 days or more, after having been committed to a state hospital under the provisions of Section 1026 of the Penal Code in a criminal proceeding in which the offense alleged to have been committed by such person was punishable by a penalty other than death, and the medical director is of the opinion that the person has improved to such an extent that he is no longer a danger to the health and safety of others and that the person will receive benefit from parole, the medical director may certify said opinion to the committing court. Within 30 days after the receipt of certification, after notice to the prosecuting attorney, the court shall, after a hearing in open court, approve or disapprove such recommendation. If the approval of the court is given, the medical director of the hospital may parole the person under such terms and
The emphasized language was added to subdivision (c) in 1974 (Stats. 1974, ch. 326, § 1) when section 7375 was recast and the provisions formerly contained in subdivision (b) of that section were incorporated in subdivision (c). (Cf. Stats. .1969, ch. 866, § 1, and earlier provisions as found in legislative history, following § 7375 in Deering’s Welf. & Inst. Code Anno.)
In 1975 effective January 1, 1976, section 7375 together with related sections of the Penal Code and the Welfare and Institutions Code were extensively amended. (Stats. 1975, ch. 1274.) The amendments to section 7375, subdivision (c), are referred to below.
See Morrissey v. Brewer (1972) 408 U.S. 471, 482 [33 L.Ed.2d 484, 495, 92 S.Ct. 2593] [parole revocation]; Gee v. Brown (1975) 14 Cal.3d 571, 575 [122 Cal.Rptr. 231. 536 P.2d 1017] [rescission of prospective parole]; In re Bye (1974) 12 Cal.3d 96, 103 and 110 [115 Cal.Rptr. 382, 524 P.2d 854] [revocation of narcotic parole]; In re Sturm (1974) 11 Cal.3d 258, 270 and 272 [113 Cal.Rptr. 361, 521 P.2d 97] [parole release]; In re Love (1974) 11 Cal.3d 179, 185-189 and 191 [113 Cal.Rptr. 89, 520 P.2d 713] [parole revocation]; In re Prewitt (1972) 8 Cal.3d 470, 474-476 [105 Cal.Rptr. 318, 503 P.2d 1326] [recession of prospective parole]; In re Franklin (1972) 7 Cal.3d 126, 148-149 [101 Cal.Rptr. 553, 496 P.2d 465] [release of committed insane defendant under Pen. Code, § 1026a]; In re’ Olson (1974) 37 Cal.App.3d 783, 789-790 [112 Cal.Rptr. 579] [parole release]; Kravitz v. State of California (1970) 8 Cal.App.3d 301, 302 [87 Cal.Rptr. 352] [release of committed insane defendant under Pen. Code, § 1026a]; and In re Jones (1968) 260 Cal.App.2d 906, 910-911 [68 Cal.Rptr. 32][id.].
His letter states:
“Chester Smith was committed by your court on October 2, 1973, under Section 1026 of the California Penal Code after having been found not guilty by reason of insanity on a charge of stabbing a man with a sharpened stick. The diagnosis made at this hospital is Schizophrenia, paranoid type.
“This is just to certify that in my opinion this patient, as a result of hospitalization and treatment has improved to the point that he is capable of returning to society, but not well enough to be certified under Section 1026(a) of the Penal Code without antipsychotic medication. I believe that he is no longer a menace to the health and safety of others and will benefit from parole. I propose that this patient be placed on indefinite leave status to be supervised by the Community Services Section of Department of Health.
“This patient has made significant progress in the treatment program and his behavior is now stabilized by antipsychotic medication. He remains free of any symptomatology while on medication and realizes the need for continuing medication.
“This certification is made in accordance with the provisions of Section 7375(a) of the Welfare and Institutions Code. A reply is respectfully requested within 30 days regarding the Court’s approval or disapproval of this recommendation.”