People v. Henderson

• Citation: 37 Cal.Rptr. 883,226 Cal.App.2d 160
• Decision Date: 03 April 1964
• Docket Number: Cr. 3459
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth King HENDERSON, Defendant and Appellant.

Page 883

37 Cal.Rptr. 883

226 Cal.App.2d 160

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth King HENDERSON, Defendant and Appellant.

Cr. 3459.

District Court of Appeal, Third District, California.

April 3, 1964.

A. M. Mull, Jr., Sacramento, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Edward A. Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

Defendant was charged with violation of Health and Safety Code sections 11531 (sale of marijuana) and 11530 (possession of marijuana). At first he entered a plea of not guilty to both charges. Later he withdrew this plea and entered a plea of guilty to the possession charge. Upon motion of the district attorney the sale charge was dismissed. After interim proceedings the court entered a judgment sentencing defendant to the state prison. Defendant appeals.

On appeal defendant contends that the court abused its discretion and acted arbitrarily when it (1) denied defendant's application for probation, (2) rejected recommendations of the Department of Corrections made pursuant to Penal Code section 1203.03, and (3) when it refused to request a second probation report after receiving the report and recommendation of the Department of Corrections.

After entering his plea of guilty, defendant applied for probation. The court ordered a probation report. The report, dated December 3, 1962, included the following information: that defendant had been in trouble on various occasions since the age of 15 (defendant was born in 1941); although many of the charges were for Vehicle Code violations, one charge was for stealing a motorcycle; that as a juvenile, he had been 'picked up' for loitering, burglary, and assault with a deadly weapon; that defendant admitted using marijuana for more than a year; that he had had only two jobs, both of short duration; that he was living with his parents, both of whom were unemployed at the time of the report; that he had behavioral problems at school and the school authorities regarded him as a disturbed individual who needed psychiatric attention; that he had been arrested after selling marijuana to an undercover agent for $20.00; that he had 16 marijuana cigarettes in his possession when arrested. The report further stated that at one time defendant had been a voluntary patient in Napa State Hospital after suffering a nervous breakdown; that he had had four visits to the Sacramento clinic of the Department of Mental Hygiene but stopped because he felt that he no longer needed treatment; that he was currently suffering from a personality disturbance. The probation officer recommended that probation be denied in view of defendant's past history and his poor response to past probationary services.

Defendant was before the court with counsel on December 6, 1962. Although defendant had consulted a private psychiatrist who had submitted a report indicating that he would respond to outpatient psychiatric care, the court expressed the view that probation was not merited. At the request of defense counsel, the court then ordered that defendant be sent to a diagnostic facility of the Department of Corrections for diagnosis and recommendation pursuant to Penal Code section 1203.03.

Defendant spent the diagnostic period at the California Medical Facility of the Department of Corrections at Vacaville. On March 13, 1963, he was again before the court with counsel. The report and recommendations of the Department of Corrections had been received and considered by the court. In summary, this report stated that defendant's relationship with his parents had been poor; that his mother had been hospitalized on several occasions for alcoholism and mental illness and that his father had an alcoholic problem and numerous conflicts with the law; that defendant had recently married but his wife was seeking an annulment or divorce. The report further stated that while defendant had been diagnosed as a schizophrenic, the absence of current overt symptoms of psychosis would probably prevent his commitment to the Department of Mental Hygiene. The report noted that following his arrest defendant had been twice interviewed by a private psychiatrist who had expressed the belief that defendant could profit from outpatient treatment and had indicated that he would treat defendant at a reduced fee. The report recommended that defendant be placed on local probation with an express provision that he obtain and continue in outpatient psychiatric treatment. The recommendation, however, was qualified in that 'if probationary supervision and out-patient treatment do not appear to be practicable his own welfare and the welfare of society would necessitate a commitment to the Department of Mental Hygiene. In the event this is not possible it is suggested that as an alternative he be committed to the California Youth Authority for institutional care, supervision and treatment, preferably through placement at the California Medical Facility.'

Having examined this report, the court stated: 'I am not satisfied that this young man ought to be placed on probation at this time, although certainly it is the disposition of the court to follow that process as far as possible. It appears obvious from everything before the court that he is [in] need of help. I think, perhaps, the alternative suggested by the Department of Corrections might be a solution to this or at least a partial solution, and that is the reference to the Youth Authority.' Defendant's counsel then informed the court that defendant's father was willing to finance outpatient psychiatric care and that a private psychiatrist was available. The court then referred defendant to the Youth Authority with a request from the court that he be admitted. A few days later the Director of the Youth Authority sent a letter to the court stating that the Youth Authority Board, after consultation with its chief psychiatrist, had decided to reject the case. The letter expressed the opinion that defendant could be better served by the Department of Mental Hygiene rather than the Youth Authority; that defendant was 21 years of age and 'our program does not guarantee psychiatric treatment.'

Further hearing was held on March 22, 1963. At that time the court stated: 'I am satisfied, also, that it would be entirely impractical and contrary to the interests of society and this young man to put him on probation at this time. Daily and constant supervision is indicated by the entire background that he cannot respond to probation treatment. It has been repeatedly tried. So that leaves one disposition, and I necessarily, then, deny the application for probation.' After hearing argument of defense counsel, the court stated: 'It is my feeling that what we should do with this young man at this time is to commit him to the institution for the offense with which he is convicted, with the recommendation they retain him at the California Medical Facility and there treat him, give him close supervision and careful treatment. * * * Now, that is...