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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alex VICTOR, Defendant and Appellant.

Civ. 10789.

Decided: June 22, 1964

Milton I. McGhee, Sacramento, for appellant. Stanley Mosk, Atty. Gen., Sacramento, by Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws, Edward W. Hinz, Jr., Deputy Attys. Gen., for respondent.

Appeal from an order committing appellant to a narcotics treatment facility as one in imminent danger of narcotics addiction.

On December 11, 1962, appellant Alex Victor appeared in municipal court and pleaded guilty to a charge of violating Health and Safety Code, section 11555 (possession of narcotics paraphernalia). He waived time for sentence and was sentenced to serve 180 days in the county jail. The court directed that the last day of sentence be suspended and that the defendant receive credit for ‘time served.’ (He had been in custody since the date of his arrest, November 14, 1962.) Victor commenced serving the 179-day unsuspended portion of the jail term. He was doing so when, on February 19, 1963, the district attorney filed in the superior court a petition for commitment as a narcotics addict, purportedly under Penal Code, section 6500.1 The district attorney sought and secured an order of ‘apprehension’ and the sheriff filed a return stating that he had ‘apprehended’ Victor, the latter remaining in jail throughout the ‘apprehension’ process.2 The next day, February 20, Victor appeared in the superior court with counsel and the court designated two doctors to examine him. Subsequently the two physicians filed certificates describing their examination and diagnoses. After several continuances a hearing was held, which concluded on April 5. On the latter date the court determined that Victor was in imminent danger of narcotics addiction and ordered his commitment. Victor then demanded a jury trial (see Pen.Code, sec. 6508), which was commenced on May 8 and concluded on May 9. In general, the two court-appointed doctors testified that although Victor was not physically addicted to narcotics at the time of their examination, he was emotionally dependent on narcotics and was in imminent danger of becoming addicted. The jury so found by an 11 to 1 vote. On May 13 Victor's motion to dismiss the proceeding was denied and he was committed to the Department of Corrections. He then filed a notice of appeal.

Salient contention on appeal is that the court was powerless to commit Victor to a narcotics treatment center under Penal Code, sections 6500–6510, since at the time of the district attorney's petition Victor was confined in jail as the result of a criminal conviction. We sustain this contention.

The governing statutes are part of chapter 11 of title 7 of the Penal Code, establishing a program for commitment of narcotics addicts, or those in imminent danger of addiction, to rehabilitation centers. Article 2 of that chapter deals with proceedings for involuntary commitment of persons charged with crime. Included in article 2 are sections 6450 and 6451. The former deals with persons convicted of crime in municipal and justice courts, the latter with persons convicted in superior courts. In either case the judge ‘upon conviction’ makes a preliminary determination to adjourn the criminal proceedings for the purpose of setting the narcotics commitment procedure in motion.

A separate procedure is that authorized by article 3, comprising sections 6500 through 6510. Although this article has the heading ‘Involuntary Commitment of Persons Not Charged With a Crime,’ we are reminded by Penal Code, section 10004 that such headings do not affect statutory scope or meaning. (See In re De La O, 59 Cal.2d 128, 137, 28 Cal.Rptr. 489, 378 P.2d 793.) At any rate, section 6500 refers to a petition for voluntary or involuntary commitment without express limitation or differentiation between persons who are or are not involved in criminal proceedings.

Even though the person may stand convicted of a crime when the commitment procedure gets under way, the latter—however involuntary—is essentially a civil proceeding. (In re De La O, supra, 59 Cal.2d at p. 145, 28 Cal.Rptr. 489, 378 P.2d 793.) Jurisdiction to enter an order of commitment depends on strict compliance with each of the specific statutory prerequisites for maintenance of the proceeding. (In re Raner, supra, 59 Cal.2d at p. 639, 30 Cal.Rptr. 814, 381 P.2d 638.)

The People concede that since the criminal action against Victor was not adjourned ‘upon conviction’ and since a sentence of jail confinement was imposed, article 2 was no longer available as authority for commitment.3 The People contend, however, that proceedings under article 3 (that is, sections 6500–6510) were lawful. We disagree. Implicit in this argument is the thesis that section 6500 does not expressly bar a petition against a person currently serving a jail or prison term, hence permits such a petition. The thesis places section 6500 in a complete vacuum, ignores the statutory scheme and overlooks jurisdictional gaps.

In article 2, dealing with commitment of persons under criminal charges, the statutes create a judicial choice between the pathway of punishment and the pathway of treatment. The choice of paths is to take place ‘upon conviction.’ The judge, according to sections 6450 and 6451, may order commencement of commitment proceedings only by adjourning the criminal action or suspending imposition of the criminal sentence.4 He may not order concurrent pursuit of both paths. Given a choice between punishment and treatment, he may not pile treatment on top of punishment.

For some unknown reason—and although the very nature of Victor's offense demonstrated his potential need for addiction treatment—this choice was not exercised in Victor's case. The municipal court sentenced him to jail without regard to the possibility of the treatment program.

Although sections 6450 and 6451 contain built-in barriers against involuntary detention on top of involuntary confinement, the proceedings against Victor sought to evade these barriers by resort to section 6500. If the People's theory is correct, section 6500 would be available to evade a prohibition implicit—and concededly present—in other provisions of the identical legislation. Treatment could be decreed by interrupting punishment halfway through its course or by instituting proceedings to secure a commitment timed to coincide with release from jail. Indeed, the latter result occurred here. Victor completed his county jail term, aside from possible good behavior credit, on May 13, 1963, the very day on which he was committed to the Department of Corrections.

Completion of Victor's jail sentence and of the commitment proceedings on the very same day was pure happenstance. The latter might have occurred before sentence had been completed. The absence of jurisdiction to entertain addiction commitment proceedings involving one who is currently in jail or prison is demonstrated by the absence of any provision for a deferred commitment. Once a defendant commences serving his sentence, a court has no jurisdiction to remit or modify it. (People v. McAllister, 15 Cal.2d 519, 526, 102 P.2d 1072.) If a rehabilitation commitment is issued during an incompleted jail or prison sentence, it must perforce stand by until completion of the latter. The punishment must grind to its inexorable end with involuntary commitment to a narcotics facility awaiting the subject as the jailhouse doors swing open. The narcotics rehabilitation law authorizes neither a deferred commitment or curtailment of a partially served sentence.

In Victor's case the imposition of punishment before the erroneous commitment proceeding deprived him of mitigating features of the rehabilitation law. When one committed under section 6450 or 6451 successfully completes the rehabilitation program, the court may dismiss the criminal charge; if the court chooses not to dismiss, time served under the narcotics commitment is to be credited on his sentence. (Sec. 6520.) A patient who does not successfully complete the program within seven years is to be returned to the criminal court; or if he was committed under article 3, he is to be discharged by the Director of Corrections. (Sec. 6521.) These provisions demonstrate that treatment, if ordered, must precede punishment, not vice versa; while in the case of persons committed under article 3, there is no occasion for return to the criminal court because a person committed under article 3 is, in contemplation of law, not the subject of incompleted criminal proceedings.

The Attorney General suggests that the Legislature left a hiatus if present or potential addiction—first brought to light while the person is in jail or prison—cannot be utilized as the basis for a commitment proceeding. There are several answers to this contention. First, the character of the criminal offense or a probation report will usually suggest potential subjects to the district attorney or judge before sentence is imposed. Second, some mistakes are discovered too late to remedy. Third, treatment is available in the state prison system and in some county jails.

It is also suggested that the district attorney could have resorted to the simple expedient of awaiting completion of Victor's jail sentence before filing the section 6500 petition. The suggestion dies nothing to rescue the present proceeding. If, after completion of months or years of imprisonment for crime, addiction or its imminent danger may be proved to the satisfaction of court or jury, commitment for rehabilitation is quite in order. That possibility, however, lends no sanction to institution of proceedings after commencement of sentence in violation of sections 6450 and 6451.

It is our conclusion that sections 6450 and 6451 establish an exclusive method for commitment of persons convicted of crime, which bars institution of proceedings after commencement of sentence. This exclusive method correspondingly narrows the scope of section 6500 until such time as the criminal proceedings are terminated by the completion of sentence. For these reasons the court had no jurisdiction to order Victor's commitment and the order must be reversed.

This conclusion makes it unnecessary to consider other claimed deficiencies in the commitment procedure.

Major legislative advances such as the narcotics rehabilitation law often raise procedural wrinkles which smooth out with experience and time. The wrinkle here is that we reach this adjudication approximately 13 months after appellant's commitment. During this period the wheels of appellate process have revolved at approximately standard speed. Meanwhile appellant has been deprived of liberty under color of a void civil commitment. Whatever may be true in criminal cases, the spectacle of illegal civil detention is tolerable only for an irreducible minimum of time. Perhaps our dismay is intensified by judicial participation, however unwitting, in his slow spinning of procedural wheels. Appellate justices do not ordinarily become aware of the character or issues of an appealed case until it is completely briefed and calendared for oral argument.5

The probability that appellant needed and has been benefited by the program of the narcotics rehabilitation center is relatively unimportant. The salient problem is availability of speedy means for scrutinizing an involuntary civil commitment which may be void for lack of jurisdiction.

In the De La O case, supra, the Supreme Court held that an order of commitment under the narcotics rehabilitation law is an appealable order (59 Cal.2d at p. 156, 28 Cal.Rptr. 489, 378 P.2d 793) but did not foreclose resort to extraordinary writs such as habeas corpus in appropriate cases (59 Cal.2d at p. 142, 28 Cal.Rptr. 489, 378 P.2d 793). (See, for example, Van Zanten v. Superior Court, 214 Cal.App.2d 510, 514, 29 Cal.Rptr. 625.) Use of the extraordinary writs to cure jurisdictional as contrasted with procedural errors is complicated by the fact that in narcotics rehabilitation proceedings procedural scratches frequently result in jurisdictional fatalities. (See In re Raner, supra, 59 Cal.2d at p. 639, 30 Cal.Rptr. 814, 381 P.2d 638.) We cannot turn the clock back in this case. In our view, however, the possible utilization of extraordinary writs to review narcotics commitment orders must receive renewed scrutiny by the courts and by attorneys representing the subjects of such proceedings.

The order of commitment is reversed with directions that appellant be forthwith placed at liberty. Appellant may apply to this court for release on bail pending issuance of the remittitur.


1.  Penal Code, section 6500 provides: ‘Anyone who believes that a person is addicted to the use of narcotics or by reason of the repeated use of narcotics is in imminent danger of becoming addicted to their use or any person who believes himself to be addicted or about to become addicted may report such belief to the district attorney who may petition the superior court for a commitment of such person to the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility.’The present statute incorporates a legislative amendment enacted in 1963, subsequent to the present proceeding. The 1963 amendment, however, is not pertinent to the legal issues on this appeal.

2.  The order of apprehension was issued although no physician's affidavit accompanied the petition. (See Pen.Code, sec. 6502; In re Raner, 59 Cal.2d 635, 30 Cal.Rptr. 814, 381 P.2d 638.) We dispose of this appeal on another ground and do not consider this particular aspect of the proceeding.

3.  The concession is consistent with a statement of Justice Peters in In re Jones, 61 Cal.2d 325, 38 Cal.Rptr. 509, 511, 392 P.2d 269, 271. He states: ‘It is clear that where sentence has been imposed and served, a prior conviction will not support a section 6451 commitment. However, this error is technical since petitioner did at the time of his commitment stand convicted of a crime subsequent to the one specified for which sentence had not been imposed.’ (Fn., p. 3, multigraphed opinion.) The implication is that imposition of a criminal sentence, its commencement or its completion, prevents resort to section 6451.

4.  It is pertinent to note at this point that sections 6450, 6451 entrust the choice not to the court, but to the judge, inferably the same judge who would exercise all the judgment factors in a choice between confinement and probation. The defendant's eligibility for the rehabilitation program thus becomes a matter for individualized consideration, based upon the judge's knowledge of the defendant's crime, character and history.

5.  This court's collective countenance is especially roseate because, not recognizing the true character of this appeal, we granted the Attorney General several routine extensions of time within which to file the People's brief. From the standpoint of the Attorney General's office, these requests were perfectly justified. The deputies in the criminal law division in that office are burdened with a volume of appeals and writs which mounts far faster than staff augmentations permitted by appropriated funds. Thus all three branches of government, judicial, executive and legislative, share responsibility for this delay in administration of justice. On April 30, 1964, Victor's court-appointed counsel filed an application for bail pending appeal after an unsuccessful attempt in the trial court. We denied that application but directed that the case be calendared for oral argument on the earliest available date. We file this opinion on June 22, 1964, six days following oral argument.

FRIEDMAN, Justice.

PIERCE, P. J., and MOOR, J. pro tem., concur.

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Docket No: Civ. 10789.

Decided: June 22, 1964

Court: District Court of Appeal, Third District, California.

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