59 Cal.2d 128, 7208, Ex parte De La O

Docket Nº:7208
Citation:59 Cal.2d 128, 28 Cal.Rptr. 489, 378 P.2d 793
Opinion Judge:[10] Schauer
Party Name:Ex parte De La O
Attorney:[7] Irmas & Rutter and S. M. Irmas, Jr., for Petitioner. [8] Stanley Mosk, Attorney General, and Gordon Ringer, Deputy Attorney General, for Respondent.
Case Date:February 14, 1963
Court:Supreme Court of California

Page 128

59 Cal.2d 128

28 Cal.Rptr. 489, 378 P.2d 793

In re David DE LA O on Habeas Corpus.

Cr. 7208.

Supreme Court of California

Feb. 14, 1963.

In Bank

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Irmas & Rutter and S. M. Irmas, Jr., Beverly Hills, for petitioner.

Stanley Mosk, Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

This matter is before us on an order to show cause issued upon an application for writ of habeas corpus filed in behalf of David De La O, who is confined in the California Rehabilitation Center under an order of commitment entered pursuant to Penal Code section 6450 (post, fn. 1). De La O, hereinafter called petitioner, attacks the constitutionality of the mentioned section and, generally, of chapters 11 and 12, title 7, of part III of the Penal Code. (§§ 6400-6555, added by Stats.1961, ch. 850, pp. 2223 et seq.) After analysis of the subject statute we have concluded that petitioner's contentions in this respect are not well taken, that he has not established a right to be released from custody, and that the order to show cause should be discharged.

Incidentally, we resolve in favor of petitioner his secondary contention that he is entitled to appellate review of the order of the superior court committing him to the California Rehabilitation Center. This determination, however, does not require that the writ of habeas corpus issue.

Petitioner was charged by criminal complaint in the municipal court with a violation of Health and Safety Code section 11721 (post, fn. 3), a misdemeanor, in that on a particular date 'in the City of Pasadena, County of Los Angeles, State of California' he 'did wilfully and unlawfully use and be addicted to the unlawful use of narcotics * * *.' Petitioner waived jury trial; he was found guilty as charged, and a motion for new trial was denied. Thereafter that court on its own motion suspended proceedings in the criminal action over which it had jurisdiction, and certified petitioner to the superior court for proceedings therein pursuant to Penal Code section 6450. 1 No judgment

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imposing imprisonment, fine, or other penal sanction has been entered in the criminal case.

The superior court conducted a hearing and examination in accordance with the terms of Penal Code section 6450 (ante, fn. 1). Petitioner was represented by counsel and evidence was received. Two physicians who had examined petitioner gave as their opinion that he was a narcotic drug addict, and recommended that he be committed to the California Rehabilitation Center. Their recommendation was based (1) on physical examination of petitioner which indicated in their opinion that 'he was using a drug of the opium series at the time of the examination or shortly used prior to that time' and (2) on the history petitioner gave them that 'Heroin started 1943. His maximum use of Heroin has been one and a half grams (a day). Average use is one gram. He has also used Cocaine and opium.' At the conclusion of the hearing the superior court made appropriate findings and entered an order adjudging petitioner to be 'a narcotic drug addict within the meaning of Section 6450 of the Penal Code' and committing him to the custody of the Director of Corrections 'for placement as provided for by law, for a period of five years, except as earlier discharge is provided for by law.' Petitioner's demand for a jury trial in the superior court on the issue of addiction was denied. 2

Constitutionality of chapters 11 and 12 title 7, of part III of the Penal Code.

Petitioner contends that the subject statute (Pen.Code, § 6450, and related sections) is unconstitutional because (1) it

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provides criminal penalties for an illness narcotics addiction thus imposing cruel and unusual punishment within the meaning of Robinson v. California (1962) 370 U.S. 660, (82 S.Ct. 1417), 8 L.Ed.2d 758; (2) it denies him a jury trial in the superior court on the issue of addiction while granting the opportunity to demand such a trial to other misdemeanants, thus depriving him of equal protection of the laws; and (3) its operative terms are vague and indefinite. We shall consider these contentions severally in the order stated.

Asserted Imposition of Cruel and Unusual Punishment. In Robinson v. California (1962), supra, 370 U.S. 660, 82 S.Ct. 1417, 8 LEd.2d 758, the United States Supreme Court held unconstitutional as there applied the provision of Health and Safety Code section 11721 making it a criminal offense to 'be addicted to the use of narcotics.' 3 The precise language of the subject holding is as follows (at pp. 1420-1421 (2) of 82 S.Ct.): 'We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.' (Italics added.) Yet in that decision (at p. 1419 of 82 S.Ct.) the high court recognized 'The broad power of a State to regulate the narcotic drugs traffic within its borders' (italics added), and observed that 'Such regulation, it can be assumed, could take a variety of valid forms. A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders. In the interest of discouraging the violation of such laws, or in the interest of the general health or welfare of its inhabitants, a State might establish a program of compulsory

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treatment for those addicted to narcotics. 4 Such a program of treatment might require periods of involuntary confinement. And penal sanctions might be imposed for failure to comply with established compulsory treatment procedures.' (Italics added.)

We recognize at once that an essential part of the procedural foundation for petitioner's current restraint is his conviction of violating Health and Safety Code section 11721. We note also that petitioner's 'status' or 'chronic condition' of being (in California) unlawfully 'addicted to the use of narcotics' (see Robinson v. California (1962), supra, 370 U.S. 660, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758) is considered to constitute a sufficient ground for conviction of violating section 11721 and therefore to prima facie establish the status of eligibility for initiation of the procedures contemplated by Penal Code section 6450. The case at bench, however, differs from Robinson in these, among other, vital respects: (1) no judgment of conviction of violating Health and Safety Code section 11721 has here been entered; (2) petitioner is not being held under any penal sanction rather, the criminal action is suspended; and (3) he is being held under involuntary restraint for compulsory treatment and rehabilitation procedures as provided by Penal Code section 6450.

The issue is whether the statutory scheme here challenged (a) 'imprisons' petitioner 'as a criminal,' or (b) constitutes 'compulsory treatment' of petitioner as a sick person requiring 'periods of involuntary confinement.' If the former, it would be unconstitutional under Robinson as cruel and unusual punishment (U.S.Const., 8th and 14th Amends.; Cal.Const., art. 1, § 6); if the latter, it would be valid under the same decision as a constitutionally permissible exercise of the state's power to regulate the narcotic drug traffic. 5

The criteria by which this issue is to be determined, however,

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are not so easily defined. In Robinson little difficulty was experienced by the majority in holding on the issues then before them that Health and Safety Code section 11721 (ante, fn. 3) imposed criminal penalties, in view of that statute's provision that any person 'convicted' of a violation thereof 'is guilty of a misdemeanor' and shall be 'sentenced to serve' a term of 'not less than 90 days nor more than one year in the county jail.' No such provision appears in the measure (Pen. Code, § 6450) undeer which petitioner is currently restrained. Rather, analysis of the present statute its origin, purpose, terms, operation, and effect discloses not just one but a number of factors to be considered in this connection, of varying relevance and weight.

,1. To begin with, we observe that the Legislature placed the subject statute in title 7 ('Administration of the State Correctional System') of part III ('Of Imprisonment and the Death Penalty') of the Penal Code. It is contended that this choice of code setting evidences a legislative intent to treat as a penal sanction the confinement under which petitioner is held. But while there may be some significance in the Legislature's choice of codification in the Penal Code rather than, for example, the Welfare and Institutions Code, the particular divisional headings used carry little weight in view of the express declaration (Pen.Code, § 10004) that 'Division, chapter, article, and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of any division, chapter, article or section hereof.' (See In re Halcomb (1942) 21 Cal.2d 126, 130 (3).)

2. Nor is much guidance to be found in the general statutory definitions. Penal Code section 17 declares in part that 'A felony is a crime which is punishable * * * by imprisonment in the state prison.' Section 1202a provides in part that 'If the judgment is for imprisonment in the State prison the judgment shall direct that the defendant be delivered into the custody of the Director of Corrections at the State prison * * *.' On this basis it is argued that a person committed under Penal Code...

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