PEOPLE v. MURPHY

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael MURPHY, Defendant and Appellant.

Cr. 6302.

Decided: February 07, 1968

Jane Gurley, San Rafael, for appellant. Thomas C. Lynch, Atty.Gen., of the State of California, Robert R. Granucci, Karl S. Mayer, Deputy Attys. Gen., San Francisco, for respondent.

For Opinion on Rehearing, see 67 Cal.Rptr. 164.

 Defendant appeals from an order of the court committing him as one in imminent danger of becoming addicted to narcotics.1  (Welf. & Inst.Code, § 3051.)

While represented by counsel, defendant pleaded guilty to one count of illegal possession of marijuana, a felony (Health & Saf.Code, § 11530), on November 30, 1966.   At defendant's request, the court suspended the criminal proceedings and ordered the district attorney to file a commitment petition under Welfare and Institutions Code section 3051.   On January 3, 1967, the court denied defendant's motion for a jury trial as premature and also denied his motion to change his guilty plea to not guilty.   After holding a hearing on the question of addiction, the court found defendant in imminent danger of becoming addicted to narcotics and on January 13, 1967 ordered his commitment.   On January 20, 1967, defendant demanded a jury trial.   The court did not act on this demand.

Defendant contends that there was no reasonable cause for his commitment;  that there was a procedural irregularity in the commitment hearing in that the two medical examiners were not present during all of the testimony;  that he should have been permitted to withdraw his plea of guilty in the criminal proceeding;  and that he was the victim of an unlawful search and seizure.   Additionally, we have been called upon to determine the legal effect of the failure of the trial court to proceed with defendant's demand for a jury trial.

 It is well established that, since a proceeding to commit a narcotic addict for treatment in a rehabilitation center is a creature of statute, jurisdiction to enter an order of commitment thereto depends on a strict compliance with each of the statutory prerequisites for maintenance of the proceeding;  and that where there is no strict compliance the court does not have jurisdiction to commit and the commitment order is void.  (In re Raner, 59 Cal.2d 635, 639, 30 Cal.Rptr. 814, 381 P.2d 638;  People v. Victor, 62 Cal.2d 280, 290, 42 Cal.Rptr. 199, 398 P.2d 391;  In re Cruz, 62 Cal.2d 307, 313, 42 Cal.Rptr. 220, 398 P.2d 412;  In re Gonzales, 246 Cal.App.2d 296, 297, 54 Cal.Rptr. 689;  People v. Whelchel, 255 A.C.A. 550, 553–554, 63 Cal.Rptr. 258.)

 Section 5053 of the Welfare and Institutions Code 2 provides that at the hearing required to be held pursuant to section 3051 to determine if the person is either a narcotic addict or is in imminent danger of becoming addicted to narcotics “The judge shall compel the attendance of at least two medical examiners, who shall hear the testimony of all witnesses, * * ”  In People v. Bruce, 64 Cal.2d 55, 61, 48 Cal.Rptr. 719, 722, 409 P.2d 943, 946 it stated as follows:  “It is also significant that the law requires, with respect to the determination of the question of narcotic addiction, as well as that of mental illness, that the medical examiners be present in the courtroom and listen to the testimony of all witnesses to assist them in arriving at their diagnoses.”   In Whelchel, supra, it was held that failure to comply with the requirement that both medical examiners shall testify required a reversal where only one of the examiners testified, even though the two examiners were present at the hearing.3

In the present case the record shows that the two medical examiners appointed by the court and defendant's father testified on January 3, 1967, the first day of the hearing.   The record discloses that the hearing was then continued to January 5, 10 and 12, 1967, that defendant's father testified on January 5, and that another witness testified on the other two dates, but it does not reveal that the other two medical examiners were present and heard the testimony on these dates.   This state of the record is undisputed;  nor is it contended by the People that the medical examiners heard the testimony of all the witnesses.   Moreover, the record discloses that the medical examiners were the first two witnesses called at the hearing and that their testimony was based on facts elicited during interviews with defendant.   There is no suggestion that the testimony of the other witness assisted them in arriving at their diagnosis as it contemplated by section 5053.   Accordingly, the failure to comply with the requirement that the medical examiners be present in the courtroom and listen to the testimony of all the witnesses omits a specific statutory prerequisite for maintenance of the proceeding and renders it fatally defective within the meaning of the cases cited above.

 In section 3051 it is provided that if a person who is committed upon the hearing held pursuant to that section is dissatisfied with the order of the court he may demand a hearing by a judge or jury in substantial compliance with the provisions of section 5125.   This latter section, although referred to in section 3051, was repealed in 1965 and its provisions are now contained in section 5572.   Pursuant to the provisions of section 5572 a person who is committed under section 3051 has the right to demand, within ten days of the commitment order, a trial de novo by jury or judge on the issue whether or not he should be committed.  (See People v. Bruce, 64 Cal.2d 55, 59, 48 Cal.Rptr. 719, 409 P.2d 943.)   The issue is his narcotic addiction at the time of his commitment.  (In re Trummer, 60 Cal.2d 658, 665, 36 Cal.Rptr. 281, 388 P.2d 177;  People v. Bruce, supra, 64 Cal.2d at p. 61, 48 Cal.Rptr. 719, 409 P.2d 943.)

 It is apparent from a reading of the applicable statutes that when a timely demand for a trial de novo is made the first order of commitment is stayed and is superseded by the adjudication made at the trial de novo.   (See §§ 3051, 5572;  and see People v. Bruce, supra, 64 Cal.2d at p. 59, 48 Cal.Rptr. 719, 409 P.2d 943.)   Accordingly, a person cannot be committed until he is adjudged at the trial de novo to be a narcotic addict or in imminent danger of becoming addicted to narcotics by reason of repeated use of narcotics.   In the instant case defendant made a timely demand for a jury trial his commitment at the first hearing.   He has never received a jury trial on the issue of his narcotic addiction.   Accordingly, there has not been the strict compliance required by statute as a prerequisite for maintenance of the proceeding by which defendant has been committed to the custody of the Director of Corrections for confinement in a narcotic detention, treatment and rehabilitation facility.4

 The foregoing conclusions require that the order in the instant case be reversed.   Accordingly, we need not dwell at length upon the other points raised on appeal.   We cannot review the propriety of the court's denial of the motion to change plea.   The denial of such a motion is a nonappealable order and may be reviewed only on appeal from the judgment of conviction.   (People v. Francis, 42 Cal.2d 335, 336, 267 P.2d 8;  People v. Parker, 196 Cal.App.2d 704, 706, 16 Cal.Rptr. 718;  People v. Singh, 156 Cal.App.2d 363, 365, 319 P.2d 697;  People v. Moffett, 137 Cal.App.2d 626, 628, 290 P.2d 667.)   Moreover, in the present case, the criminal proceedings have been suspended and there is no final judgment in the criminal proceedings.   Furthermore, any judgment based on a guilty plea requires the obtaining of a certificate of probable cause from the trial court as a prerequisite to an appeal from the judgment.  (Pen.Code, § 1237.5;  Cal.Rules of Court, rule 31(d);  People v. Gonzales, 249 A.C.A. 637, 638, 57 Cal.Rptr. 587.)

 The search and seizure contention likewise cannot be raised on this appeal, since, as stated, we are not reviewing the final judgment of conviction.   In any event, defendant does not claim that his guilty plea was the result of any illegal police conduct;  therefore, the validity of the search is immaterial to the validity of defendant's conviction, which is based exclusively on his plea.  (See In re Seiterle, 61 Cal.2d 651, 657, 39 Cal.Rptr. 716, 394 P.2d 556.)

With respect to the contention that there was no reasonable cause for his commitment, we point out that, as to the question of the sufficiency of the evidence at the summary hearing held pursuant to section 3051, the remedy of a person who believes he has been illegally committed is to demand trial by jury or by the court on “the issue of his [narcotic] addiction as of the time of his commitment.”  (In re Trummer, supra, 60 Cal.2d at p. 665, 36 Cal.Rptr. at page 286, 388 P.2d at page 182;  People v. Bruce, supra, 64 Cal.2d at pp. 59, 61, 62, 48 Cal.Rptr. 719, 409 P.2d 943.5  Here defendant availed himself of that remedy but he did not receive the trial by jury demanded by him.   Accordingly, because the failure to grant defendant such trial has rendered the proceedings fatally defective the question of the sufficiency of the evidence is moot.

The order is reversed.

FOOTNOTES

1.   The commitment order is appealable as a final judgment in a special proceeding.  (Code Civ.Proc. § 963, subd. 2;  In re De La O, 59 Cal.2d 128, 156, 28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705.)

2.   Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

3.   Section 5053 also provides that the two medical examiners shall “* * * testify before the judge as to the result of the examination, and to any other pertinent facts within their knowledge.”

4.   We note that in People v. Victor, supra, 62 Cal.2d at page 290, footnote, 4, 42 Cal.Rptr. 199, 398 P.2d 391, where a jury was demanded but the trial was not held within 10 days from the date of demand as provided in the statute, but after a delay of 23 days, the Supreme Court, in discussing the specific statutory prerequisites for maintenance of the proceedings, expressed doubt that such a delay was in “substantial compliance” with the statutory requirement.   In the instant case no jury trial at all was afforded defendant.

5.   We note that in Bruce a trial de novo was waived by a failure to make a timely demand.   The court, however, after noting that although normally a defendant should seek the de novo remedy provided in the statute, proceeded to review the sufficiency of the evidence adduced at the commitment hearing because a great amount of medical testimony had been presented at an extensive hearing accorded the defendant.