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: March 25, 1968

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

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

While represented by counsel, defendant pleaded guilty to one count of illegal possession of marijuana, a felony (Health & Saf. Code, s 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 to ascertain if defendant was addicted to narcotics or in imminent danger thereof.1 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. Defendant filed a notice of appeal from this order on the same day. On January 20, 1967, defendant demanded a de novo jury trial pursuant to section 5572.2 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 upon the instant appeal of defendant's demand for a de novo jury trial.

We proceed, preliminarily, to determine the scope of this appeal. Turning first to the contentions that defendant should have been permitted to withdraw his guilty plea and that he was the victim of an unlawful search and seizure, we decide that neither of these contentions can be urged on this appeal. The denial of a motion to change plea 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 of conviction. 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, s 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 question cannot be raised because, as already noted, 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 claim of procedural irregularity, we note that when it is asserted that the superior court lacked jurisdiction to entertain the commitment proceedings or to enter an order of commitment because of a failure strictly to comply with the statutory prerequisites for maintenance of the proceeding, such alleged deficiency may be reviewed by an appeal from the order of commitment without resort to the remedy of a trial de novo. (See People v. Victor, 62 Cal.2d 280, 290, 42 Cal.Rptr. 199, 398 P.2d 391; People v. Whelchel, 255 A.C.A. 550, 554, 63 Cal.Rptr. 258.) Accordingly, we proceed to determine whether the procedural irregularity claimed by defendant deprived the trial court of jurisdiction to make the order, since such contention, if meritorious, will dispose of this appeal.

Since a proceeding to commit a narcotic addict for treatment in a rehabilitation center is a creature of statute, it has been held that jurisdiction to enter an order of commitment depends on 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, supra, 62 Cal.2d at p. 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, supra, 255 A.C.A. at pp. 553—554, 42 Cal.Rptr. 199, 398 P.2d 391.) The requirement of strict compliance, however, is in certain instances equated to substantial compliance. (See People v. Victor, supra, at pp. 290—291, 42 Cal.Rptr. 199, 398 P.2d 391; In re Jones, 61 Cal.2d 325, 328, 38 Cal.Rptr. 509, 392 P.2d 269.) Thus, section 3051 provides that ‘If a petition is ordered filed, proceedings shall be conducted in Substantial compliance with Sections 5353, 5053, 5054, and 5055 of this code.’ (Emphasis added.) Accordingly, we find the following observation in Jones, supra: ‘The Legislature could not have intended literal compliance with all of the provisions of sections 5053, 5054, or 5055 of the Welfare and Institutions Code. These sections were enacted to provide a hearing procedure for mentally irresponsible persons. For that reason, if taken literally, they would be, in part, inappropriate for a civil narcotic commitment procedure.’ (P. 328, fn. 3, 38 Cal.Rptr. p. 511, 392 P.2d p. 271.) This observation was noted in Victor, supra, where, after quoting the statement in Jones, the Supreme Court stated as follows: ‘In an effort to minimize this patent inappropriateness the Legislature provided that in commitments under article 2 there need only be ‘substantial compliance’ with the listed Welfare and Institutions Code sections.' (62 Cal.2d p. 290, 42 Cal.Rptr. p. 204, 398 P.2d p. 396.)3

It appears from the foregoing, therefore, that the essential consideration, in each instance, is whether the failure literally to comply with a statutory provision is tantamount to a failure to comply with a specific statutory prerequisite for maintenance of the proceeding, which failure renders the proceeding fatally defective because the court lacks jurisdiction to entertain it or because it amounts to a denial of procedural due process. Thus commitment proceedings have been held to be fatally defective where the person sought to be committed was illegally detained prior to the hearing (In re Raner, supra, 59 Cal.2d at pp. 641—643, 30 Cal.Rptr. 814, 381 P.2d 638; In re Jones, supra, 61 Cal.2d at p. 328, 38 Cal.Rptr. 509, 392 P.2d 269; In re Gonzales, supra, 246 Cal.App.2d at pp. 297—298, 54 Cal.Rptr. 689); where the medical examiners did not attend the hearing and did not certify that he was addicted or in danger of being addicted (In re Jones, supra, at p. 328, 38 Cal.Rptr. 509, 392 P.2d 269); where only one of the two medical examiners present at the hearing testified (People v. Whelchel, supra, 255 A.C.A. at pp. 553—554, 42 Cal.Rptr. 199, 398 P.2d 391); where only one medical examiner instead of two attended the hearing. (People v. Victor, supra, at p. 290, 42 Cal.Rptr. 199, 398 P.2d 391.

With these principles in mind we turn to the instant case and section 5053, the pertinent statutory provision. That section provides, in pertinent part, 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, * * *’ The section also provides that the two examiners shall make a personal examination of the person ‘and testify before the judge as to the result of the examination, and to any other pertinent facts within their knowledge.’ In the present case the record discloses that four witnesses testified at the commitment hearing. The first two were the medical examiners appointed by the court; the third was defendant's father, and the fourth was an attorney not involved in the case. The record further discloses that the two medical examiners and defendant's father testified on January 3, 1967, the first day of the hearing; that the hearing was then continued to January 5, 10 and 12, 1967; that defendant's father testified further on cross-examination on January 5; and that the attorney witness testified on the other two dates. The record does not disclose whether the medical examiners were present during the testimony of the other witnesses. Defendant does not contend, however, that the two medical examiners did not hear the father's testimony on January 3, but asserts that they were not present on the other dates and therefore did not hear the testimony of the witness who then testified.4 The People concede that this is so.

Defendant contends that the absence of the two medical examiners on January 5, 10 and 12 rendered the proceeding fatally defective and that therefore the court did not have justification to commit. We do not agree. The only testimony relevant to the issue before the court which was not actually heard by the two medical examiners was part of the cross-examination of defendant's father, which is covered in approximately 14 pages of the reporter's transcript, and which consumed approximately 25 minutes. This testimony was essentially devoted to the relationship between defendant and his father and the friendship existing between the witness and the trial judge. None of the testimony was inconsistent with the father's preceding testimony on direct and cross-examination, which the doctors heard. As pointed out in People v. Bruce, supra, 64 Cal.2d at page 61, 48 Cal.Rptr. 719, 409 P.2d 943, the requirement that the medical examiners be present in the courtroom and listen to the testimony of all witnesses is for the purpose of assisting the examiners in arriving at their diagnoses. In the instant case, the testimony of the father given in the absence of the examiners had little or no bearing on the diagnoses.

With respect to the testimony of the attorney witness, who was called by the judge as his own witness on the basis that she had some expertise on the beneficient attributes of the narcotic rehabilitation center, her testimony had no relevance to the issues before the trial court, but, as indicated by the court, was adduced for the purpose of allaying defendant's misgivings concerning the center and the treatment offered there. The testimony was not intended nor received for the purpose of assisting the medical examiners in their diagnoses.

Under the circumstances, we conclude that there was substantial compliance with section 5053; that the defect was not jurisdictional; and that defendant was not deprived of judicial due process. The defect in the instant case is clearly distinguishable from that in People v. Whelchel (255 A.C.R. 550, 63 Cal.Rptr. 258) where only one of the two examiners testified. As pointed out by the appellate court, ‘The purpose of the statutory requirement that both examiners testify is to place them under oath and subject them to examination respecting their findings.’ (P. 554, 63 Cal.Rptr. p. 261.) In our case that statutory prerequisite was satisfied. We do not believe, moreover, that People v. Bruce (64 Cal.2d 55, 48 Cal.Rptr. 719, 409 P.2d 943) requires a contrary conclusion. In stating that ‘It is also significant that the law requires, with respect to the determination of the question of narcotic addition, 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' (p. 61, 48 Cal.Rptr. p. 722, 409 P.2d p. 946), the Supreme Court did not hold that this was a statutory prerequisite in each instance, but was merely stating that in the case before it the requirement had been met.

We turn next to the appealability of the question of the insufficiency of the evidence. Preliminarily we note that we are called upon to reconcile the settled principle that a commitment order under section 3051 is appealable as a final judgment in a special proceeding. (In re De La O, 59 Cal.2d 128, 156, 28 Cal.Rptr. 489, 378 P.2d 793; People v. Victor, supra, 62 Cal.2d at p. 288, 42 Cal.Rptr. 199, 398 P.2d 391; Code Civ.Proc. s 963, subd. 2), with the provision in section 3051 providing that if a person committed ‘is dissatisfied with the order of the court, he may demand a hearing by a judge or jury * * *.’ In People v. Bruce, supra, 64 Cal.2d at page 62, 48 Cal.Rptr. at page 723, 409 P.2d at page 947, the Supreme Court stated as follows: ‘Normally, * * * a defendant who feels that he has been improperly committed for lack of evidence of his addiction should seek the remedy provided for in the statute, namely, to demand a trial de novo by jury or by court.’ Bruce took cognizance of the holding in In re Trummer, 60 Cal.2d 658, 665, 36 Cal.Rptr. 281, 286, 388 P.2d 177, 182, that the remedy of a person who believes he has been illegally committed under the provisions of the narcotic statutes is to demand a trial by jury or by the court “on the issue of his narcotic addiction At the time of his commitment.' (Italics added.)' However, since the defendant in Bruce had not demanded a trial de novo the reviewing court, having noted that such a trial had been waived (p. 59, 48 Cal.Rptr. 719, 409 P.2d 943), proceeded to review the evidence adduced at the commitment hearing and then held the evidence insufficient to substantiate the order of commitment.

In the instant case defendant filed a timely notice of appeal from the order of commitment and then, within the 10-day period provided for in section 5572, made a demand for a de novo jury trial. The notice of appeal was not required to and did not state the grounds of the appeal. At this stage of the proceedings, therefore, the trial court had no way of ascertaining whether it retained jurisdiction over any aspect of the case; for although the rule is that an appeal from an order in a criminal case removes the subject matter thereof from the jurisdiction of the superior court (Anderson v. Superior Court, 66 Cal.2d 863, 865, 59 Cal.Rptr. 426, 428 P.2d 290; People v. Sonoqui, 1 Cal.2d 364, 366, 35 P.2d 123; People v. Fewkes, 214 Cal. 423, 426, 6 P.2d 250), there was no means of identifying the subject matter of defendant's appeal. When, however, defendant demanded a jury trial, it appeared, at least preliminarily, that he had elected to appeal upon procedural errors only and to attack the sufficiency of the evidence by a trial de novo.

In his brief on appeal defendant has indicated for the first time the grounds of his appeal. Among these is the ground that the evidence is insufficient to substantiate the order of commitment. It is apparent that he has elected to pursue the course taken in People v. Bruce, supra, 64 Cal.2d 55, 48 Cal.Rptr. 719, 409 P.2d 943, and that such election is tantamount to a waiver of his demand for a trial de novo and has made a nullity of such a demand. We are persuaded to this holding by the rationale in In re Trummer, supra, 60 Cal.2d at page 665, 36 Cal.Rptr. 281, 388 P.2d 177, and People v. Bruce, supra, that the proper and normal manner to attack the sufficiency of the evidence at the commitment hearing is by a trial de novo, and that it is only where the defendant has waived his right to such trial and has elected to stand on the record in the commitment hearing that he can urge the insufficiency of the evidence on an appeal from the order of commitment. In sum, we do not believe that it was the legislative intent, in the light of the expeditious remedy afforded by sections 3051 and 5572, to encumber the judicial process by affording the right to appeal from the order of commitment upon the ground of the insufficiency of the evidence and then to permit another appeal on such ground from the order of commitment after a de novo hearing in the event that the first appeal was decided adversely to the appellant.

We are persuaded to the conclusion we have reached by the decision in Anderson v. Superior Court, 66 Cal.2d 863, 59 Cal.Rptr. 426, 428 P.2d 290. There the People appealed from the granting of an accused's motion to set aside an indictment. (Pen.Code, s 995.) While the appeal was pending the People filed a new accusatory pleading based on the same charges. (Pen.Code, s 997 et seq.) The Supreme Court held that the People should elect as soon as feasible between maintaining the appeal or proceeding under the new accusatory pleading. (P. 867, 59 Cal.Rptr. 426, 428 P.2d 290.) Similarly in the present case when defendant appealed from the order of commitment and then filed a timely demand for a trial de novo he was required, as soon as feasible, to maintain the appeal on the ground of the insufficiency of the evidence or proceed to attack the lack of evidence by proceeding with the trial de novo. Here that election was made when defendant attacked the lack of evidence on the appeal.

We now turn to the question of the sufficiency of the evidence in the light of the following facts. At the time of the commitment proceedings defendant was 19 years old. The only evidence that he was in danger of addiction to narcotics was the testimony of the two medical examiners and of his father that defendant had admitted using LSD, marijuana, cocaine, methedrine, opium, and heroin, and that defendant was living in the Haight-Ashbury district and had admitted a compulsive need to use dangerous drugs. The testimony and the conclusions of both court-appointed physicians were based entirely on statements made by defendant during short interviews which took place while defendant was hospitalized for critical internal bleeding associated with a hereditary vascular disease. Dr. Hagan found no physical evidence of addiction to or of use of any drugs, nor did he make a physical examination of defendant other than to check his arms for needle scars. Dr. Jay Dee Wark based his testimony entirely on a 45-minute interview with defendant. He also found no physical indicia of use of or addiction to dangerous drugs. The conclusions of the father, with whom defendant did not reside, were based on defendant's statements to him before and after entering the hospital. The record also discloses that eleven hundred dollars worth of marijuana were found in defendant's apartment. There is no evidence that other drugs were found in his possession.

The foregoing evidence is sufficient to substantiate the finding of the court that defendant was in imminent danger of becoming addicted to narcotics, and the order predicate thereon. In People v. Victor, supra, 62 Cal.2d at pages 302—305, 42 Cal.Rptr. 199, 398 P.2d 391, danger of addiction is defined as the point where repeated or habitual use has placed the defendant in imminent danger of emotion or physical dependence on narcotics. (See also People v. O'Neil, 62 Cal.2d 748, 750, 44 Cal.Rptr. 320, 401 P.2d 928.) In the instant case defendant's admissions (to the use of which no objection was interposed) of repeated use of dangerous drugs and of narcotics, including opium and heroin, are clearly sufficient evidence of his danger of addiction.

The order of commitment is affirmed.

FOOTNOTES

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

2.  Pursuant to the provisions of section 5572, a person who is ordered committed under section 3051 may, within 10 days after the making of such order, demand that the question of his addiction be tried by a judge or jury. Although section 3051 provides that the hearing by the judge or jury be in substantial compliance with section 5125, the latter section was repealed in 1965 and its provisions are now contained in section 5572. (See People v. Bruce, 64 Cal.2d 55, 59, fn. 4, 48 Cal.Rptr. 719, 409 P.2d 943.)

3.  Article 2 encompasses sections 3050 to 3054, inclusive, and provides for the ‘Involuntary Commitment of Persons Charged With a Crime’ who are narcotic addicts in imminent danger of becoming addicted to narcotics.

4.  In the face of a silent record, the apparent concession of defendant, and the fact that it is not disclosed by the record that the examiners were excused following their testimony, we are entitled to assume that the two medical examiners were present during the entire proceeding on January 3.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.

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