Martinez, In re

• Citation: 130 Cal.App.2d 239,278 P.2d 727
• Decision Date: 14 January 1955
• Docket Number: Cr. 977
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of Perfecto MARTINEZ, an Alieged Sexual Paycopath. The PEOPLE of the State of California, Plaintiff and Respondent, v. Perfecto MARTINEZ, Defendant and Appellant.

Page 727

278 P.2d 727

130 Cal.App.2d 239

In the Matter of Perfecto MARTINEZ, an Alieged Sexual Paycopath The PEOPLE of the State of California, Plaintiff and Respondent, v. Perfecto MARTINEZ, Defendant and Appellant.

Cr. 977.

District Court of Appeal, Fourth District, California.

Jan. 14, 1955.

Perfecto Martinez, in pro. per.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

GRIFFIN, Justice.

On February 10, 1948, petitioner was charged and convicted of the crime of vagrancy, to wit, being an idle, lewd and dissolute person. He was ordered confined in the county jail for six months. His alleged propensities were to appear in public in female wearing apparel and to manifest a sexual perverted mental aberration.

On March 12, 1948, there was filed a warrant of apprehension under section 5501 of the Welfare and Institutions Code, alleging him to be a sexual psychopath and that he was a menace to the health and safety of others. A hearing was duly had on the issue presented on March 25, at which time petitioner appeared in person and by his attorney. Evidence was produced by all parties concerned. The hearing resulted in an order confining petitioner in a state hospital until he recovered. Operation of the sentence imposed was suspended.

On April 2, 1952, by order, defendant was returned to the Superior Court of San Bernardino County under the provisions of section 5517, subdivision (c) of the Welfare and Institutions Code, for further proceedings in respect to the claim that he had recovered. Defendant was represented by an attorney. Clinical reports and medical opinions of the hospital staff were received in evidence. The opinion stated that petitioner had not recovered and was still a menace to the health and safety of others and recommended that petitioner be returned. An examination of the facts set forth in the recommendation fully justified this opinion. A judgment and order of recommitment resulted on May 16, 1952.

On January 9, 1953, the court requested of the Medical Director of the State Hospital to again report on petitioner's sexual psychopathic tendencies and on January 26, 1953, an adverse report was returned indicating that petitioner was still a menace to the health and safety of others. It set forth certain homosexual acts indicating that the report had foundation. The recommendation was made that petitioner be recommitted and that he be placed at Terminal Island Medical Facility. Defendant was present at the hearing. On February 27, 1953, the court made such an order. On April 10, 1953, a similar, but more lengthy hearing was held on a subsequent application, and a recommitment order followed. On April 13, 1954, petitioner, in propria persona, filed a very elaborate 'Motion for Court Order' and in it asked the Superior Court to 'make and sign an order' directing his return to that court 'for those certain psychopathy proceedings provided for in Chapter 24, sections 5501, 5501.5, 5503, 5503.5, 5504, 5505, 5508, 5510, 5517, 5518, and 5519, of the State Welfare and Institutions Code.' Accompanying this written motion was a note that in the event the motion was denied he enclosed therewith a notice of appeal and application for clerk's and reporter's transcripts. A subsequent request was made of the County Clerk to notify him if the court granted him a hearing, and the effect of the decision rendered.

From the clerk's transcript it appears that on June 9, 1954, the court signed an order reciting that a motion had been made by petitioner pursuant to section 5519 of the Welfare and Institutions Code, and that such motion is granted, and that the superintendent of the Medical Facility was ordered to forward his opinion as to whether petitioner had recovered from the sexual psychopathy, and to recommend accordingly, and that after the report was received petitioner 'shall be returned to this court, upon order, for hearing as to whether the said Perfecto Martinez is still a sexual psychopath within the meaning of Chapter IV, Division 6, Part I, of the Welfare and Institutions Code.'

On July 15, 1954, the progress report was filed by the medical staff, and clearly indicated the petitioner had not recovered and was still a menace to the health and safety of others. It does not affirmatively appear that defendant was present at any hearing had on such motion, that he was represented by counsel, or that any witnesses were sworn and examined. On July 15, 1954, the court signed an 'Order of Recommitment', reciting that upon request of petitioner the court directed the superintendent of the Medical Facility to forward his opinion and recommendations under subdivisions (a), (b) or (c) of Section 5517 of the Welfare and Institutions Code, as to future care and supervision of petitioner; that such report and recommendation was received by the court and accordingly petitioner was recommitted for an indeterminate period, for custodial care and treatment.

Apparently, it is from this later order that petitioner appeals. Such an order, having been made after judgment in a special proceeding of a civil nature, has been held to be collateral to a criminal case and appealable. Gross v. Superior Court, 42 Cal.2d 816, 270 P.2d 1025; Sec. 936 Code Civ.Proc.; People v. McCracken, 39 Cal.2d 336, 246 P.2d 913.

It is petitioner's contention on this appeal (1) that the court erred in denying him a fair and open hearing after granting his motion for such a hearing and ordering the return of petitioner to such court for such hearing; (2) that the...