People v. Bachman

• Decision Date: 26 January 1955
• Citation: 279 P.2d 77,130 Cal.App.2d 445
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Franklin BACHMAN, Defendant and Appellant. Crim. 2589.

Page 77

279 P.2d 77

130 Cal.App.2d 445

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Franklin BACHMAN, Defendant and Appellant.

Crim. 2589.

District Court of Appeal, Third District, California.

Jan. 26, 1955.

Cecil J. Bishop, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., by Gail A. Strader, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

This is a motion to dismiss appeal. James Franklin Bachman, defendant, appellant herein, was convicted of a violation of Section 288 of the Penal Code, to which charge he pleaded guilty. This conviction was for a felonious sex offense involving a child under fourteen years of age. Judgment committing the defendant to imprisonment at the State prison for the term prescribed by law was pronounced on March 25, 1954. Pursuant to the provisions of Section 5501, Subdivision (c) of the Welare and Institutions Code, the court suspended the execution of the sentence and certified Bachman for hearing and examination to determine whether he was a sexual psychopath within the meaning of Chapter 4, Part 1, Subdivision 6 of said code. The hearing was held. The court-appointed psychiatrists reported that he was a sexual psychopath and on April 15th the court made an order to that effect and ordered that he be placed temporarily in the Mendocino State Hospital for an observation period not to exceed ninety days; and further that the superintendent of that hospital report to the court within said period his findings as to the sexual psychopathy of defendant. This order was made agreeable to the provisions of Section 5512 of the Welfare and Institutions Code and pursuant thereto Bachman was received and observed at the hospital. On June 24th there was filed in the cause the report of the superintendent and medical director of the hospital that Bachman was not a sexual psychopath as defined under the code, that he was not a menace to the health and safety of others, and that he would not benefit by care and treatment in a state hospital. The superintendent recommended that Bachman be returned to the court for further proceedings in the criminal case against him. On June 29th following Bachman appeared in court and it was ordered that the judgment and sentence in the criminal case be executed, and he was remanded to the custody of the sheriff of the county, to be delivered to the state prison. In the meantime, however, and on the coming in of the medical report, Bachman asked of the court that it take further evidence as to whether he was a sexual psychopath, stating that a staff member of the hospital was in disagreement with the medical superintendent's findings. He asked the court to permit this psychiatrist to testify. To this request the court consented and on June 29th the psychiatrist, Doctor Clarence S. Bennett, testified that he had been the physician actively in charge of Bachman's case while he was at the hospital for observation, that in his opinion Bachman was a sexual psychopath and would benefit from hospital treatment. Thereafter the court made the order above recited, remanding Bachman to the sheriff for delivery to the prison to serve out the sentence theretofore imposed. Within sixty days from the date of that order, but far in excess of ten days from that date, Bachman filed a written notice of appeal stating that he appealed from said order of June 29th 'against the said defendant, James Franklin Bachman, pursuant to Section 5512 of the Welfare & Institutions Code, that defendant, James Franklin Bachman, was not a menace to the health and safety of others, and that he would not benefit by care and treatment in a State Hospital.

The People have moved to dismiss said appeal upon the grounds: 1. That it was not timely, not having been taken within ten days after entry of the order appealed from; and, 2. That it was an attempt to take an appeal from a non-appealable order.

We hold that the appeal was taken in time.

'* * * Sexual psychopathy proceedings are special proceedings of a civil nature which are collateral to the criminal case.' Gross v. Superior Court, 42 Cal.2d 816, 820, 270 P.2d 1025, 1027.

'* * * The entire statutory procedure [in sexual psychopathy proceedings] * * * [is] civil in nature rather than penal.' People v. McCracken, 39 Cal.2d 336, 346, 246 P.2d 913, 918.

'The proceedings under section 5512 of the Welfare and Institutions Code are of a civil nature.' People v. Howerton, 40 Cal.2d 217, 219, 253 P.2d 8, 10.

'* * * A proceeding provided for by section 5501 of the Welfare and Institutions Code is a proceeding civil in nature, not criminal, * * *.' In re Keddy, 105 Cal.App.2d 215, 217, 233 P.2d 159, 161.

'* * * Sexual psychopathy proceedings * * * [are] civil in nature'. People v. Gross, 115 Cal.App.2d 502, 505, 252 P.2d 416, 418.

'* * * In the absence of statutory provision denying the right to apppeal, an appeal may be taken by virtue of the general provisions of section 963 [C.C.P.] allowing appeals in special proceedings. * * * While there is no provision in the Welfare & Institutions Code for an appeal in sexual psychopath proceedings as there are for some of the other proceedings there authorized, we do not believe that is an indication that the general provisions on appeal, Code Civ.Proc. § 963, do not apply. It would thus appear that the original order of commitment as a sexual psychopath is appealable as a final judgment in a special proceeding and that subsequent orders made under section 5519 would be appealable as special orders after final judgment.' Gross v. Superior Court, supra, 42 Cal.2d at pages 820-821, 270 P.2d at page 1027.

It having been decided that sexual psychopathy proceedings are special proceedings of a civil nature and that orders therein are appealable under the provisions of Section 963 of the Code of Civil Procedure, it follows that the rules on appeal in civil cases govern the time within which such appeals may be taken and that the rules on appeal in criminal cases have no application thereto so far as is concerned the time within which such appeals must be noticed.

We hold that the order appealed from is non-appealable and for that reason the appeal must be dismissed. As heretofore noted, Section 5501, Subdivision (c), of the Welfare and Institutions Code provides that:

'When a person is convicted of a sex offense involving a child under 14 years of age and it is a felony, the court shall adjourn the proceeding or suspend the sentence, as the case may be, and shall certify the person for hearing and examination by the superior court of the county to determine whether the person is a sexual psychopath within the meaning of this chapter.'

Section 5512 of the Welfare and Institutions Code provides that:

'If, after examination and hearing, the...