Gross v. Superior Court of Los Angeles County

Citation270 P.2d 1025,42 Cal.2d 816
CourtUnited States State Supreme Court (California)
Decision Date25 May 1954
Parties. L. A. 23046. Supreme Court of California, In Bank

Ellery E. Cuff, Public Defender, Los Angeles County, under appointment by the Supreme Court, and Arthur J. Jaffe, Deputy Public Defender, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux and John B. Anson, Deputy County Counsel, Los Angeles, for respondents.

CARTER, Justice.

On March 17, 1948, Walter Gross, petitioner here, pleaded guilty in a criminal prosecution to a violation of section 288 of the Penal Code (lewd and lascivious conduct with a child under 14 years of age); he also admitted prior felony convictions, burglary, sodomy and lewd and lascivious conduct with a child for which he served prison terms. He requested probation and pending hearing thereon and passing of sentence, proceedings were instituted pursuant to statute, Welfare & Institutions Code, § 5500 et seq. to have it determined that he was a sexual psychopath. Proceedings in the criminal case were suspended. After a hearing thereon Gross was adjudged on July 7, 1948, to be a sexual psychopath and ordered confined to Camarillo State Hospital to be returned to court for further proceedings when his cure had been effected. The medical experts at that hearing stated that there was probably no chance of rehabilitation and that he should be permanently remeoved from society. He escaped from Camarillo, was captured and confined in the Mendocino State Hospital. On July 21, 1952, he filed in the superior court a 'Motion for Subpoena and Writ of Attachment.' The motion was denied on July 23, and he appealed. On September 18, 1952 he filed in the superior court what the he called a 'Motion for Subpoena and Writ of Attachment' in which he claimed that he was no longer a menace to society but the superintendent of Mendocino State Hospital refused to so certify. Pursuant to section 5519 of the Welfare & Institutions Code, the court requested the superintendent's opinion as to whether he was still a sexual psychopath, and on the superintendent's report that he was, the court ordered him returned to the court for further proceedings. At those proceedings the medical experts reported he was still a sexual psychopath and a menace to society and there was little hope for his recovery. On December 15, 1952, the court found in accordance with the experts' reports and ordered him committed to the Department of Mental Hygiene for placement at Terminal Island where he now is. His appeal from the July 23, 1952, order of denial was dismissed by the District Court of Appeal on January 26, 1953. People v. Gross, 115 Cal.App.2d 502, 252 P.2d 416. (The facts above recited are taken from the opinion on that appeal.) The appeal was dismissed on the ground that Gross had had a hearing on the determination of his then condition which resulted in the December 15th order.

Gross also moved to vacate and set aside the sexual psychopathy proceedings which the court denied on November 17, 1952. He appealed from that order. That appeal was dismissed in the same decision on the ground that it was an interlocutory order and therefore not appealable, whether the psychopathy proceedings be treated as criminal or civil; that the order of December 15, 1952, was the final order in the case. The District Court of Appeal states in its opinion that no appeal was taken from the December 15th order and that it was the final judgment in the case, but it appears that an appeal was taken therefrom within time on December 24, 1952. He also requested a clerk's and report's transcript of the proceedings leading to that order. His request for the transcripts was denied by the clerk of the superior court and he now seeks in this proceedings a writ of mandate ordering the clerk and court to prepare the transcripts.

Respondents assert that petitioner is not entitled to the transcripts because no appeal lies from the order; he cannot appeal in forma pauperis as he seeks to do nor have the transcripts prepared at the state's expense.

The proceedings which lead to the order of December 15th were taken under section 5519 of the Welfare & Institutions Code which provides that after a person who has been committed to the Department of Mental Hygiene as a sexual psychopath has been confined for not less than six months the court may on its own motion or on motion by the person committed, require the superintendent of the hospital to send a report to the court of his opinion as to whether (a) the person 'has recovered from his sexual psychopathy to such an extent that in the opinion of the superintendent the person is no longer a menace to the health and safety of others, or (b) has been treated to such an extent that in the opinion of the superintendent the person will not benefit by further care and treatment in the hospital and is not a menace to the health and safety of others, or (c) has not recovered from his sexual psychopathy, and in the opinion of the superintendent the person is still a menace to the health and safety of others, * * *.' Welfare & Institutions Code, § 5517. After receipt of the report the court may order the return of the person to the court for a hearing as to whether he is still a sexual psychopath. The hearing shall be conducted substantially the same as the original proceedings committing the person. If after the hearing the judge finds '* * * that the person has not recovered from his sexual psychopathy and is still a menace to the health and safety of others, he shall order the person returned to the Department of Mental Hygiene under the prior order of commitment for an indeterminate period, or, if the opinion of the superintendent of the state hospital was * * *' that he has not recovered from his sexual psychopathy and in the opinion of the superintendent is still a menace to others the judge may order the person's recommitment for an indeterminate time. Thereafter, 'A subsequent hearing may not be held under this section until the person has been confined for an additional period of six months from the date of his return to the department.' Welfare & Institutions Code, § 5519. Finally, 'If the court finds that the person has recovered from his sexual psychopathy to such an extent that he is no longer a menace to the health and safety of others, or that he will not benefit by further care and treatment in the hospital and is not a menace to the health and safety of others, the committing court shall thereafter cause the person to be returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge.' Welfare & Institutions Code, § 5519. It thus appears that after a person has been committed as a sexual psychopath he may have his condition reascertained at intervals of not less than six months. The redetermination would be a proceeding after the original commitment substantially affecting the rights of the party and the original order of commitment. On that basis the December 15th order could be appealable under section 963 of the Code of Civil Procedure which provides that an appeal may be taken from a superior court 'judgment' entered in a 'special proceeding' and 'any special order made after final judgment'. Sexual psychopathy proceedings are special proceedings of a civil nature which are collateral to the criminal case. People v. Howerton, 40 Cal.2d 217, 253 P.2d 8; People v. McCracken, 39 Cal.2d 336, 246 P.2d 913; In re Keddy, 105 Cal.App.2d 215, 233 P.2d 159; People v. Gross, supra, 115 Cal.App.2d 502, 252 P.2d 416. In the absence of statutory provision denying the right to appeal, an appeal may be taken by virtue of the general provisions of section 963 allowing appeals in special proceedings. See Morton v. Broderick, 118 Cal. 474, 50 P. 644; People v. Bank of San Luis Obispo, 152 Cal. 261, 92 P. 481; In re...

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    ...equally--if not more so--to the California mentally disordered sex offender law. First, as we recognized in Gross v. Superior Court (1954) 42 Cal.2d 816, 821, 270 P.2d 1025, when a man is charged with being a mentally disordered sex offender 'His liberty is at stake.' That threat is fulfill......
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    ...are special proceedings of a civil nature which are collateral to the criminal case. [Citations.]" (Gross v. Superior Court (1954) 42 Cal.2d 816, 820, 270 P.2d 1025 (Gross) [former § 5500 et seq., recodified as former § 6300 et seq.]; see also In re Gary W. (1971) 5 Cal.3d 296, 309, 96 Cal.......
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