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District Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Charles Robert Carrol BROWN, Defendant and Appellant.

Cr. 10067.

Decided: November 12, 1964

Sam Bubrick, Los Angeles, under appointment by the District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.

Defendant was charged in th Municipal Court, Los Angeles Judicial District, with the crime of burglary. The matter was transferred to the superior court and, after proceedings there, he was found to be ‘presently insane as defined by Section 1368 Penal Code,’ and was committed to Atascadero State Hospital. He appealed from the order of commitment and, at his request, we appointed counsel for him on this appeal. Counsel has filed an opening brief, in which he contends that the commitment was improper for three reasons: (1) that the court did not suspend the criminal proceedings, once a ‘doubt’ as to defendant's insanity had arisen, but proceeded to determine his present sanity as part of the criminal case—a procedure expressly condemned in People v. Jackson (1951) 105 Cal.App.2d 811, 815–816, 234 P.2d 261; (2) that the court did not advise defendant of his right to a jury trial and that the record is devoid of any suggestion that he was aware of this right; and (3) that Section 1368 is unconstitutional, in that it does not provide for any notice to the defendant of the proposed hearing.

The Attorney General has moved to dismiss the appeal, on the ground that an order of commitment under Section 1368 is not one of those from which an appeal lies. The motion is not well taken. A commitment under Section 1368 has been said not to be one for a crime and the proceeding under that section to be in the nature of a special proceeding (People v. Loomis (1938) 27 Cal.App.2d 236, 240, 80 P.2d 1012). It has many of the same characteristics as an order of commitment as a mentally disordered sex offender (formerly known as a sexual psychopath) and as an order of commitment as a narcotic addict under Sections 6400 et seq. of the Penal Code. Both such orders have been held to be appealable under Section 963 of the Code of Civil Procedure. (In re De La O (1963) 59 Cal.2d 128, 156, 28 Cal.Rptr. 489, 378 P.2d 793; Gross v. Superior Court (1954) 42 Cal.2d 816, 820–821, 270 P.2d 1025.)

The motion is denied.

KINGSLEY, Justice.

BURKE, P. J., and JEFFERSON, J., concur. Hearing granted; BURKE, J., not participating.

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