People v. Bruce

• Decision Date: 31 January 1966
• Citation: 409 P.2d 943,64 Cal.2d 55,48 Cal.Rptr. 719
• Court: California Supreme Court
• Parties: , 409 P.2d 943 The PEOPLE, Plaintiff and Respondent, v. Lenny BRUCE, Defendant and Appellant. L. A. 28605.

Page 719

48 Cal.Rptr. 719

64 Cal.2d 55, 409 P.2d 943

The PEOPLE, Plaintiff and Respondent, v. Lenny BRUCE, Defendant and Appellant.

L. A. 28605.

Supreme Court of California, In Bank.

Jan. 31, 1966.

As Modified Feb. 28, 1966.

Irmas & Rutter and S. M. Irmas, Jr., Beverly Hills, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

Upon conviction of defendant Lenny Bruce of possession of heroin criminal proceedings were suspended, and on June 4, 1963, the court ordered the sheriff to file a petition pursuant to former section 6451 of the Penal Code ¹ in order to ascertain whether defendant 'is addicted to the use of narcotic drugs or by reason of repeated use of narcotics is in imminent danger of becoming so addicted.' A petition was filed and a lengthy hearing was held commencing on June 12, 1963, at which defendant was represented by counsel. At the conclusion of the hearing the trial court determined that defendant was a narcotic addict and committed him to the custody of the Director of Corrections for placement in the narcotic addicts rehabilitation program.

Defendant appeals from the order of commitment and contends that the evidence is not sufficient to establish his addiction, particularly as that term is defined in the recent cases of this court. In addition, defendant advances a number of contentions directed to procedural steps in his commitment which will first be discussed.

A review of the proceedings indicates that such procedural defects as occurred were either brought about by stipulations of counsel that the particular steps might be dispensed with, or were the necessary result of such stipulations. The record indicates that the hearing took several days, the transcript thereof covering some 400 pages, and demonstrates that the trial judge was painstaking in his efforts to accord defendant a full and complete hearing despite the fact that the particular hearing was the summary proceeding provided for in the law and not the trial de novo to which one is entitled, if he so desires, following an order of commitment. ²

Under the provisions of former section 6451 of the Penal Code (now section 3051 of the Welfare and Institutions Code), a hearing and examination are required to be held to determine if the person is either a narcotic addict or is in imminent danger of becoming addicted to narcotics, and such proceedings are required to be conducted in substantial compliance with certain sections of the Welfare and Institutions Code dealing with the examination and commitment of mentally ill persons.

These sections (former 5053, 5054, 5055) ³ specify that the court may order the clerk to issue subpoenas and compel the attendance of witnesses at such hearing. They provide that the judge shall compel the attendance of at least two medical examiners 'who shall hear the testimony of all witnesses,' make a personal examination of the patient and testify before the judge as to the result of the examination, and to any other pertinent facts within their knowledge. The judge is also required to cause to be examined before him as a witness any other person who he has any reason to believe has any knowledge of the mental condition of the patient. The sections require the patient to be present at the hearing, and contain provisions for the appointment of counsel.

These sections also prescribe the form of certificate to be made and signed by the medical examiners certifying to attendance at the hearing, the conducting of an examination of the patient and the results of such examination. In the statutory form of the certificate the doctor is required to state the 'pertinent case history,' the general physical condition, present mental status, the results of laboratory reports (if any), the doctors' tentative diagnosis of mental health, the recommendation for disposition or supervision, treatment and care, and the reasons for the recommendation.

The medical examiners and courts have had to adapt there applicable sections to the handling of cases involving alleged narcotic addicts, or those persons in imminent danger of becoming addicted to narcotics.

In the vast majority of cases dealing with mentally ill persons, as well as with narcotic addicts, such petitions are unopposed, and the proceedings tend to be summary in nature. For this reason the legislature has afforded a person who is committed under such sections the right to demand a trial de novo by jury or judge on the issue as to whether or not he should be committed. (Welf. & Inst.Code, §§ 3050, 3051, 3108.) Any such hearings are required to be held in substantial compliance with the provisions of section 5125 of the Welfare and Institutions Code. ⁴

In this case defendant has not demanded a trial de novo and, therefore, it may be deemed waived. He does, however, attack the validity of the order of commitment upon several grounds. He asserts that the court erred in appointing two additional medical witnesses after it appeared that there was a disagreement between the first two physicians appointed by the court to examine defendant. One of the physicians first appointed indicated to the court that additional evidence was required before he could arrive at a diagnosis. The second indicated that he had concluded from his physical examination of the defendant that he was a narcotic addict. In view of this disagreement the court correctly followed the procedure often taken in similar situations involving allegedly mentally ill persons, the appointment of one or more additional doctors to examine the person. Here the court appointed two medical examiners long experienced in examining persons claimed to be addicted to narcotics. They examined the defendant and subsequently gave their testimony in court. This was entirely proper since the applicable statute requires the court to appoint at least two medical examiners. (Welf. & Inst.Code, former § 5053.)

Both pairs of examiners duly filed their certificates with the court. Defendant complains, however, that the certificate of the first two doctors was incomplete and did not substantiate the order of commitment and that the court referred to this particular certificate in its order of commitment. This is factually correct; however, the clerk's transcript indicates that the certificates of all four medical examiners appointed by the court were in fact filed as a part of the proceedings on June 20, 1963, and, undoubtedly, the reference in the formal order signed by the judge only to the certificate of the first two doctors was a clerical error which is subject to correction by a nunc pro tunc order. At the conclusion of the hearing, following argument, the court indicated that it was relying upon the testimony of three of the four doctors appointed by the court that the defendant 'is a narcotic drug addict at this time and that he is in need of rehabilitation treatment.'

The defendant charges that the medical witnesses should not have been permitted to review the report of the probation officer which was in the file, asserting that such report includes hearsay evidence and that the effect was to deny the defendant a fair trial. This objection has no merit because it ignores the nature of these proceedings. The law clearly contemplates that the medical examiners shall have the benefit of all relevant information to better enable them to make their diagnoses, and, as pointed out, the form of the certificate required of the doctors specifically includes 'pertinent case history.' In the case of a mentally ill person such case history is usually compiled by a psychiatric social worker, probation officer or investigator, and is afforded to both the court and the medical examiners for their information. In the case of an alleged narcotic addict, or one in imminent danger of becoming addicted to narcotic drugs, the report of the probation officer, likewise, can be very helpful in giving the doctors and the court the history and background of the individual insofar as it bears on the question of his use of narcotics.

It is also significant that the law requires, with respect to the determination of the question of narcotic addiction, as well as that of mental illness, that the medical examiners be present in the courtroom and listen to the testimony of all witnesses to assist them in arriving at their diagnoses.

We conclude therefore that there are no valid questions of procedure under which the order of commitment may be successfully attacked in this case, and that under such circumstances the normal procedure would be to affirm the order and to advise the defendant that as to the question of insufficiency of the evidence, as pointed out in In re Trummer, supra, 60 Cal.2d 658, 665, 36 Cal.Rptr. 281, 286, 388 P.2d 177, 182, the remedy of a person who believes he has been illegally committed under the provisions of the narcotic addiction statutes is to demand trial by jury or by the court 'on the issue of his narcotic addiction as of the time of his commitment.' (Emphasis added.)

Here, at the summary hearing defendant's counsel laid great emphasis upon the fact that none of the tests conducted by any of the eight doctors who testified were positive, i. e. showed the presence of narcotics in the defendant's system when examined or indicated that he was then undergoing or had at any time undergone the withdrawal symptoms which are indicative of addiction. However, such tests made on or about the time of commitment are not compelling proof of nonaddiction. In People v. Victor, 62 Cal.2d 280, 302, 304, 42 Cal.Rptr. 199, 213, 214, 398 P.2d 391, 405, 406, the court recognized that 'addiction is period of weeks or months, and who has not no single definition of 'addiction' may be satisfactory for all purposes there is general agreement that abuse of an addictive...