People v. Bourdon

• Decision Date: 26 August 1970
• Docket Number: Cr. 15820
• Citation: 10 Cal.App.3d 878,89 Cal.Rptr. 415
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Glenn Eugene BOURDON, Defendant and Appellant.

Page 415

89 Cal.Rptr. 415

10 Cal.App.3d 878

The PEOPLE, Plaintiff and Respondent, v. Glenn Eugene BOURDON, Defendant and Appellant.

Cr. 15820.

Court of Appeal, Second District, Division 5, California.

Aug. 26, 1970.

Hearing Denied Oct. 22, 1970.

Howard C. McArdle, Jr., Culver City, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Diana C. Woodward, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Acting Presiding Justice.

This is an appeal from an order of commitment to the California Rehabilitation Center following a jury determination that appellant was in imminent danger of becoming a narcotics addict. ¹

The initial proceeding which brought appellant before the court was a petition filed by the District Attorney seeking involuntary commitment of defendant, in accordance with Welfare and Institutions Code section 3100 and 3100.6. ²

Following the court's compliance with sections 3102 and 3104, ³ a hearing was held in compliance with sections 3106 and 3106.5; appellant was determined to be a person who is a narcotic drug addict as defined by section 3100.6; and he was committed to the California Rehabilitation Center. Appellant demanded that a jury trial be accorded him, in compliance with section 3108. ⁴ In the course of the jury trial he unsuccessfully sought to raise the issue of probable cause for his arrest, which led to some of the evidence admitted against him. The propriety of raising the issue of probable cause during the jury-trial phase of the commitment proceedings is the sole contention on appeal.

We agree with appellant's contention. It is now established that the exclusionary rule does apply to civil narcotic commitment procedings. (People v. Moore, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 446 P.2d 800.) In Moore, the issue of probable cause was tried at the commitment hearing held by the judge. (The same procedure was followed in People v. Benedict, 2 Cal.App.3d 400, 82 Cal.Rptr. 759.) In People v. Murphy, 70 Cal.2d 109, 116, 74 Cal.Rptr. 65, 68, 448 P.2d 945, 948, the court reiterated its holding in Moore:

'* * * We held in Moore that a person sought to be committed under this statutory scheme enjoys the freedom from unreasonable search and seizure guaranteed by the Fourth Amendment and implemented by the exclusionary rule. It follows that a claim on appeal from an order of commitment that certain evidence was obtained by an illegal search and seizure cannot be dismissed if that evidence was introduced over timely objection at any stage of the Commitment proceedings.' (Emphasis added.)

There are two hearings possible within the 'commitment proceedings,' the first being the judge-hearing and encompassing both the question of 'strict compliance with each of the statutory prerequisites for maintenance of the proceeding' (In re Raner, 59 Cal.2d 635, 639, 30 Cal.Rptr. 814, 816, 381 P.2d 638, 640) and the evidentiary issue relative to the accusation of addiction. A jury-hearing relates solely to the evidentiary support for the accusation. The Supreme Court has held that the jury-hearing, initiated only upon demand of or for defendant after an affirmative finding at the judge-hearing, is De novo on the addiction issue. (People v. Murphy, 70 Cal.2d 109, 74 Cal.Rptr. 65, 448 P.2d 945.) Thus we see that the question of sufficiency of evidentiary proof is twice considered. The very concept, 'de novo' hearing, means that all matters therein in issue are to be considered 'anew; afresh; over again,' ⁵ and it encompasses the admissibility of the evidence sought to be adduced, even though That determination is one of law and to be made by the judge and not the jury. The issue of probable cause for arrest and search and seizure under the exclusionary rule is enmeshed with the question of the sufficiency of evidence supportive of addiction.

It might be argued that the ruling of the court on the probable cause issue which was made at the judge-hearing should stand and that that question should not be determined; that the De novo concept applies only to those issues which the jury will determine. However, we do not believe that the Supreme Court's characterization of the jury-hearing as a trial De novo carried any such limitation.

Furthermore, no principle similar to that set up by Penal Code section 1538.5 for criminal trials, as intimated by the People, is applicable. As stated in Moore, after a concession that the proceeding had an identity with the objective of criminal law entorcement (69 Cal.2d at p. 685, 72 Cal.Rptr. at p. 807, 446 P.2d at p. 807): 'The absence of any criminal conviction serves to emphasis and not rebut the civil purpose, mechanism, and operation of the program and to further the conclusion that the proceedings are not penal within Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.'

Thus we see that, though closely identified with certain aspects of criminal law (protecting the person accused), the purpose and procedure are civil in nature. ⁶ The motion to suppress under Penal Code section 1538.5 is applicable only in criminal cases. The issue of admissibility (suppression) of the evidence must be raised at every 'trial' in the civil action, and there is no 'continuing ruling' on admissibility as in the criminal trial. ⁷ The judge was obligated to hear and determine the issue of probable cause when that issue was raised at the jury-hearing. He could not rely upon his determination of that issue which he had made in the judge-hearing. ⁸ As we have stated, in the Moore case, Supra, the probable cause issue was tried at the judge-hearing. Since the ruling resulted in an invalid Commitment because the ruling was erroneous on the probable cause issue, the whole proceedings were reversed. Even though no objection was raised at the jury hearing, the commitment being erroneous, the jury determination of Status could not breathe life into the already dead commitment order. In Benedict, supra, there was presented the problem of a Valid commitment hearing preceding the admission of evidence at the jury-hearing. No probable cause issue was raised at the jury hearing in Benedict, and the contention on appeal there attacked only the validity of the commitment hearing (judge-hearing). The case of People v. Clark, 272 Cal.App.2d 294, 77 Cal.Rptr. 50 considers the issue of probable cause founded upon a ruling on that issue tried at the jury hearing. Probable cause was there found to have existed, and no issue was raised on appeal as to the propriety of determining that issue at the jury-hearing. We therefore do not rely upon Clark as authority in support of appellant's contention in the instant case, though it Assumes the jury-hearing a proper proceeding in which to raise the probable cause issue. ⁹

We, of course, are not confronted with the need to examine into the merits of the contention relating to probable cause. The facts were not permitted to be adduced. The person accused of being a...