Kramer, In re

• Decision Date: 21 December 1967
• Docket Number: Cr. 14084
• Court: California Court of Appeals Court of Appeals
• Parties: In re Frank F. KRAMER on Habeas Corpus.

Page 686

64 Cal.Rptr. 686

257 Cal.App.2d 287

In re Frank F. KRAMER on Habeas Corpus.

Cr. 14084.

Court of Appeal, Second District, Division 4, California.

Dec. 21, 1967.

As Modified Jan. 2, 1968.

Hearing Denied Feb. 14, 1968.

Frank F. Kramer, in pro. per., for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber and Robert F. Katz, Deputy Attys. Gen., for respondent.

FILES, Presiding Justice.

On or about April 14, 1965, in the Superior Court for the City and County of San Francisco, petitioner was convicted upon his plea of guilty of a violation of Penal Code section 288 (lewd or lascivious acts upon the body of a child under 14). The court suspended proceedings and appointed two psychiatrists to examine petitioner and report as to whether he was a mentally disordered sex offender under Welfare and Institutions Code section 5501.

On April 28, 1965, petitioner and his attorney were before the court. At that time counsel for both sides offered to submit on the doctors' reports which, according to the comments of the trial judge, had expressed the opinion that petitioner was a mentally disordered sex offender. The court thereupon made an order placing petitioner in Atascadero State Hospital for 90 days of observation. On July 28, 1965, the court adjudged petitioner to be a mentally disordered sex offender and committed him 'in compliance with Sections 5512 and 5518 of the Welfare and Institutions Code' to the Department of Mental Hygiene for an indeterminate period and sent him to the institution of the Department of Corrections located at Vacaville.

No reporter's transcript for July 28 has been supplied. The superior court's order simply recites that petitioner and counsel were present, and the court made its decision.

Petitioner did not appeal from the order of commitment.

Petitioner has since been transferred to the California Men's Colony, West Facility, Los Padres, California, which is within this appellate district.

The petition filed here alleges that petitioner is illegally confined in that the superior court failed to conduct the proceedings required by the Welfare and Institutions Code. The facts set forth in the petition, together with the additional facts alleged or admitted by the respondent, show that the proceedings were defective in the following respects:

(1) No certification was made, as is required by section 5501.5.

(2) No form of certification was delivered to petitioner, as is required by section 5501.

(3) The judge failed to inform petitioner of his rights to make a reply and to produce witnesses, as the judge is required to do under section 5503.

(4) No hearing worthy of the name was held prior to the April 28 order or the July 28 order.

The complete failure to prepare and to deliver to petitioner the necessary certification, and the court's failure to advise him of his rights as the code requires, taken together, constitute a denial of procedural due process, and require that the commitment be set aside. (People v. Harvath, 251 A.C.A. 911, 60 Cal.Rptr. 15; People v. Loignon, 250 A.C.A. 707, 58 Cal.Rptr. 866; cf. In re Jones, 61 Cal.2d 325, 38 Cal.Rptr. 509, 392 P.2d 269; In re Rander, 59 Cal.2d 635, 30 Cal.Rptr. 814, 381 P.2d 638.)

In re Raner, supra, was a habeas corpus proceeding in which a commitment for narcotics addiction was set aside because of failure to follow the statutory procedure. There is a 'close analogy between sexual psychopathy statutes and those * * * relating to commitment for narcotic addiction.' (People v. Succop, 65 Cal.2d 483, 488, 55 Cal.Rptr. 397, 340, 421 P.2d 405, 408.) The Raner opinion states regarding the narcotic commitment procedure (59 Cal.2d at p. 639, 30 Cal.Rptr. at p. 816, 381 P.2d at p. 640):

'Being a creature of statute, jurisdiction to enter an order of commitment pursuant thereto depends on Strict compliance with each of the specific statutory prerequisites for maintenance of the proceeding.' (Emphasis in the original.)

Contrary to the contention of the Attorney General, the absence of the certification cannot be regarded as a mere irregularity of form. The mentally disordered sex offender law provides for a separate proceeding of a civil nature. (Thurmond v. Superior Court, etc., 49 Cal.2d 17, 20, 314 P.2d 6.) The papers required by the statute are in the nature of pleadings and process in the new proceeding. These documents give the offender notice of the nature of the charge and the alleged facts upon which it is based. Failure to prepare and serve these required papers cannot be excused by the supposition that the offender already knows what the case is about.

Respondent contends that the defects here complained of could have been raised by direct appeal, as in Loignon, and that habeas corpus is therefore not an appropriate remedy. Respondent also points out that petitioner had counsel in the superior court, and argues that petitioner's failure to object, together with his failure to appeal from the order of commitment, should bar relief by habeas corpus now.

With respect to the availability of habeas corpus, it is sufficient to note that the Supreme Court has used that remedy to vacate the analogous narcotic addition commitments. (In re Jones, supra, 61 Cal.2d 325, 38 Cal.Rptr. 509, 392 P.2d 269; In re Raner, supra, 59 Cal.2d 635, 30 Cal.Rptr. 814, 381 P.2d 638.) The procedural defects in the case at bench are no less significant than those in the narcotics cases.

In People v. Harvath, supra, a mentally disordered sex offender case, this court had before it direct appeals, not from the commitment order, but from orders denying post-commitment relief. By stipulation, all of the documents filed were treated as a petition for habeas corpus. The court said, 'By reason of that stipulation, we need not and do not determine whether or not either of the orders was appealable.' (251 A.C.A. at p. 912, fn. 1, 60 Cal.Rptr. at p. 16.) The court considered the pendency of the purported appeals to be immaterial because it was of the opinion that relief by habeas corpus was available.

In the case at bench the facts will not support any theory of waiver. It is true that, under some circumstances, the statutory procedural requirements may be waived. (In re Cruz, 62 Cal.2d 307, 42 Cal.Rptr. 220, 398 P.2d 412.) But no waiver can be implied where the petitioner was never given the minimum notice and advice which the statute requires.

On April 28 and, apparently, also on July 28, 1965, petitioner's attorney consented to submit the matter upon the medical...