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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell KELLUM, Defendant and Appellant.

Cr. 6933.

Decided: January 21, 1969

Lloyd B. Egenes, San Francisco, for defendant and appellant. Thomas C. Lynch, Atty. Gen., of the State of California, Robert Granucci, Michael Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

For opinion on Hearing, see 78 Cal.Rptr. 501, 455 P.2d 429.

Appellant was charged with two counts of rape (violation of Pen.Code, § 261, subd. 4).   He pleaded not guilty and not guilty by reason of insanity.

The jury returned a verdict of guilty as charged in Count I (rape) and guilty of assault with intent to commit rape, a lesser and included offense within the charge in Count II.   The evidence of appellant's guilt was clear and convincing.   Both victims made positive identification of appellant as their assailant.   The appellant is six feet inches tall and weights in excess of 250 pounds.   The first victim was accosted in daylight and forcibly taken to appellant's home where the rape occurred.   Appellant, believing that he had persuaded his victim not to tell what occurred, gave her his phone number so that she could call him.   The second victim also had ample opportunity to observe ample opportunity to observe appellant.   Bruises resulting from blows inflicted on her were photographed.   In addition to the positive identification, the prosecution also recovered the gun used by the appellant as a threat and described by the victims.

The issue of appellant's sanity was tired and the jury found appellant sane at the time of the commission of the charged offenses.

Thereafter the criminal proceedings were suspended and sexual psychopathy proceedings were instituted.   On the basis of the reports of two physicians, the court found that it was probable that appellant was a mentally disordered sex offender and committed to Atascadero State Hospital.   After hospitalization from the date of conviction in 1963 until June 1967, appellant was returned to court as not being amenable to treatment.   The court on November 30, 1967, found that he was a mentally disordered sex offender and was a menace to society although not amenable to treatment.   Appellant was thereupon sentenced to prison for the term prescribed by law.   Appellant here claims that certain statements obtained from him by the police were admitted into evidence and that he was not advised prior to the giving of these statements of his constitutional right to remain silent and to counsel as guaranteed by the court in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

 The statements contended as error were made under the following circumstances:  After appellant was placed under arrest, the arresting police officer, Inspector Forte, had four conversations with him.   Also, a recorded statement was taken from appellant.   This statement, containing admissions, was read into evidence.   The record does not reflect that appellant was advised of his constitutional rights.   Where the record, as here, is silent as to whether or not a criminal defendant received an Escobedo–Dorado warning, the appellate court may not presume that the warning was given.  (People v. Chaney, 63 Cal.2d 767, 48 Cal.Rptr. 188, 408 P.2d 964;  People v. Rivers, 66 Cal.2d 1000, 1005, 59 Cal.Rptr. 851, 429 P.2d 171;  People v. Stewart, 62 Cal.2d 571, 581, 43 Cal.Rptr. 201, 400 P.2d 97.)   Since this case was tried prior to January 29, 1965, appellant was not required to make objections in the trial court to the use of the statements.  (People v. Doherty, 67 Cal.2d 9, 14, 59 Cal.Rptr. 857, 429 P.2d 177.)

The Escobedo–Dorado rules have been held to apply to all cases which have not become final before June 22, 1964, even though the trial was prior to those decisions.  (In re Shipp, 62 Cal.2d 547, 549, 43 Cal.Rptr. 3, 399 P.2d 571;  People v. Rollins, 65 Cal.2d 681, 56 Cal.Rptr. 293, 423 P.2d 221.)   Although appellant was tried in May 1963, the judgment of conviction which was entered against him was not entered until November 30, 1967.   The criminal proceedings had been suspended when appellant was committed as a mentally disordered sex offender.   Thus, appellant argues that his case was not final on June 22, 1964, and the Escobedo–Dorado rules must be applied.

While recognizing the rules regarding the retroactivity of Escobedo–Dorado decisions, a degree of elasticity in their application is noted in People v. Rivers, supra, 66 Cal.2d 1000, 1005, 59 Cal.Rptr. 851, 854, 429 P.2d 171, 174, where the court said:  “The serious disruption of the administration of the criminal law that would be caused by retrials and by the denial of the use of statements received in full compliance with the law [then in effect] compels adherence to the rationale of In re Lopez.*  We therefore hold that the Escobedo–Dorado rules do not apply to reinstated appeals such as this one.   Cases in which it has been held or assumed that those rules apply to reinstated appeals are disapproved insofar as they are inconsistent with the views expressed herein [citations].”

In the case before us both the officer and the appellant testified that the statements were voluntary.   The evidence of appellant's guilt was beyond doubt.   The delay in entry of final judgment was caused by an attempt to benefit appellant by medical treatment.   The statements now claimed by appellant to have been admitted in error would have been admissible under the law as it existed prior to June 22, 1964.

The court in People v. Williams, 265 A.C.A. 1088, 71 Cal.Rptr. 871 (decided since this appeal was taken), stated:  “The purpose of limiting the retroactive application of Escobedo–Dorado was to promote the orderly administration of justice and prevent the release of persons of undoubted guilt where the possibility of a successful retrial has been unduly diminished by the lapse of time.”  (P. 1091, p. 874 of 71 Cal.Rptr.)   In Williams the entry of final judgment of conviction was deferred by reason of proceedings under the Narcotic Addict Rehabilitation Law and the court held that the delay thus caused was not to be used to bring the case within the Escobedo–Dorado requirements.   In the case before us, the sentencing of appellant was deferred by special proceedings comparable to those which deferred sentencing in Williams.   The reasoning of the court in Williams is equally applicable here.

 We feel that the rule of Escobedo and Dorado, sought primarily to prevent police tactics which in the past have spawned involuntary confessions, contemplated prospective prevention of coercive police practices.   These rules should not be extended to cases where final judgment was delayed in an attempt to treat appellant to alleviate or eliminate the motivating causes of his offenses.  (See In re Lopez, 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380.)   It is concluded therefore that when the entry of final judgment of conviction has been deferred until after June 22, 1964 by commitment to a state hospital for treatment as a mentally disordered sex offender the delay caused thereby is not to be used to bring the case within the rules of Escobedo and Dorado.

 Appellant also claims that the gun introduced into evidence was the result of an illegal search and seizure.   When the officers came to appellant's home to investigate the reports of rape, they told appellant hat they knew he had a gun and it would be best for him to get it rather than for the officers to turn the car upside down looking for it.   The appellant contends that the production of a gun under compulsion amounts to a search without consent.   This argument is without merit, first because appellant failed to object to the admission of the gun into evidence at the trial and is now precluded from raising the issue on appeal (People v. Cockrell, 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116) and, secondly, the search was incidental to the arrest and as such is valid.  (Wilson v. Superior Court etc., 46 Cal.2d 291, 294 P.2d 36.)

 Appellant also contends that when he was committed as a mentally disordered sex offender he was (1) not certified in the manner prescribed by Welfare and Institutions Code section 5501, and (2) not advised of his rights to reply and produce witnesses as required by Welfare and Institutions Code section 5503.   The Attorney General concedes this irregularity.   Such irregularities constitute a denial of procedural due process.  (In re Kramer, 257 Cal.App.2d 287, 64 Cal.Rptr. 686.)   Appellant is no longer confined as a mentally disordered sex offender, but this fact does not render the irregularities leading to his commitment moot.  (People v. Succop, 67 Cal.2d 785, 63 Cal.Rptr. 569, 433 P.2d 473.)   The relief to which he is entitled is credit for the time served under commitment as a mentally disordered sex offender on the sentence he is now serving for his rape convictions.  (People v. Foster, 67 Cal.2d 604, 63 Cal.Rptr. 288, 432 P.2d 976).

 Appellant's contention that the denial of his motion for probation should be set aside is without merit.   The trial judge was precluded from granting probation by the failure of the district attorney to concur in the granting of this motion.  (Pen.Code, § 1203.)

It is concluded that the orders finding appellant to be a mentally disordered sex offender and committing him for an indefinite time are vacated and credit is directed to be given on any sentence for the time spent under the vacated orders.

The judgment of conviction in all other respects is affirmed.


FOOTNOTE.   In In re Lopez, 62 Cal.2d 368, 381, 42 Cal.Rptr. 188, 198, 398 P.2d 380, 390, the court stated:  “Unlimited retroactive application of Escobedo would result in the reconsideration of countless cases that were correctly decided under the law in force at the time of trial;  in many such cases witnesses and evidence would no longer be available.   Many hardened and dangerous criminal would glean the greatest profit from unlimited retroactivity;  they serve lengthy sentences imposed long ago;  their cases thus offer the least likelihood of successful retrial.   To require a general release of prisoners of undoubted guilt would be to cripple the orderly administration of the criminal laws.  [Citations.]”