People v. Levy, Cr. 3260

• Decision Date: 04 June 1957
• Docket Number: Cr. 3260
• Citation: 311 P.2d 897,151 Cal.App.2d 460
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William A. LEVY, Defendant and Appellant.

Page 897

311 P.2d 897

151 Cal.App.2d 460

The PEOPLE of the State of California, Plaintiff and Respondent, v. William A. LEVY, Defendant and Appellant.

Cr. 3260.

District Court of Appeal, First District, Division 1, California.

June 4, 1957.

Hearing Denied July 31, 1957.

Peter M. Nakahara, San Jose, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

The superior court, pursuant to the terms of the Sexual Psychopath Act (§§ 5500-5521 of the Welf. & Inst.Code) found Levy to be a sexual psychopath who would not benefit from further hospitalization and was a menace to the health and safety of others, and committed him for an indeterminate period to the Department of Mental Hygiene for placement for treatment as a sexpal psychopath at San Quentin. Levy appeals, admitting that the lower courts complied precisely with the provisions of the relevant statutes, but contends that the act is substantially criminal in nature and is unconstitutional as applied to him. What appellant really seeks is a reappraisal by this court of the essential nature of the Sexual Psychopath Act and a reversal of a line of Supreme and Appellate court decisions holding that the act is essentially civil in nature.

The background of this controversy is somewhat complex. In July of 1954 appellant was charged with the misdemeanor of annoying and molesting a child under the age of 18 in violation of section 647a(1) of the Penal Code. He pleaded guilty in the Municipal Court. He had at least one prior misdemeanor sex conviction. After a probation hearing, the Municipal Court adjourned the criminal proceeding and certified appellant to the Superior Court, as provided in section 5501 of the Welfare and Institutions Code. As provided in the act, the Superior Court appointed two psychiatrists to examine appellant. They reported that he was an alleged sexual psychopath. Pursuant to section 5512 of the Welfare and Institutions Code the court found appellant to be an alleged sexual psychopath and committed him to the Mendocino State Hospital for a 90-day observation period. Within the time limited the medical director at Mendocino reported to the court that after appellant had been given physical and psychiatric examinations, and kept under observation, his condition was diagnosed as a case of 'Sociopathic Personality Disturbance, Sexual Deviation (Homo-sexuality and Pedophilia).' The medical director at Mendocino also opined that appellant was a sexual psychopath as defined in the statute, was a menace to the health and safety of others, and would not benefit by treatment in a state hospital. The report observed that appellant had a long record of antisocial behavior and was a confirmed homosexual with a predisposition toward child molestation. Appellant was returned to the Superior Court, and that court on October 29, 1954, after a hearing, found appellant to be a sexual psychopath who would not benefit from care or treatment and remanded him to the Municipal Court for further proceedings.

In November of 1954 the Municipal Court, by stipulation of all concerned, again certified appellant to the Superior Court for a hearing to determine whether he was a sexual psychopath. On November 19, 1954, the Superior Court, on the basis of the previous report of the medical director of Mendocino, again found that appellant was a sexual psychopath, and this time ordered him committed for an indeterminate period to the Department of Mental Hygiene for placement in the Atascadero State Hospital. Sec. 5518 of the Welf. & Inst.Code.

Some 17 months later, in April of 1956, the medical director at Atascadero diagnosed appellant's condition as being the same as the diagnosis at Mendocino. He certified that appellant had not recovered from his psychopathy and opined that appellant was still a menace to the health and safety of others. Pursuant to section 5517(c) of the Welfare and Institutions Code he recommended that appellant 'be recommitted to the Department of Mental Hygiene for placement in an institutional unit for the treatment of sexual psychopaths in a facility (California State Prison at San Quentin) of the Department of Corrections.' The Superior Court referred the case to its probation department, another hearing was had, and on May 11, 1956, appellant was again found to be a sexual psychopath and a menace to others, and the case was again remanded to the Municipal Court for further proceedings as provided in section 5518 of the Welfare and Institutions Code. The Municipal Court, after considering a supplementary probation report, promptly (May 16, 1956) recertified appellant to the Superior Court. Shortly thereafter that court, for the fourth time, determined that appellant was a sexual psychopath, concluded that he would not be benefited by further hospitalization, found that he was still a menace to the health and safety of others and that he was predisposed to the commission of sexual offenses, and committed him 'for an indeterminate period to the Department of Mental Hygiene, for placement in an Institutional Unit for the treatment of Sexual Psychopaths in a facility of the Department of Corrections, namely: The California State Prison at San Quentin.' It is from this order that this appeal is taken. It should be mentioned that appellant was represented by counsel during most of these proceedings.

The first major contention of appellant is that the Act, as applied to a person first convicted of a misdemeanor and certified to the Superior Court as a probable sexual psychopath, and then committed by that court to San Quentin for an indeterminate period, is unconstitutional for the reason that it subjects the accused to double jeopardy in violation of section 13, Article I of the California Constitution. This argument is unsound if the proceeding under the Act is essentially civil in nature, because the double jeopardy clause, of course, is applicable only to two successive criminal proceedings for the same offense.

This is no longer an open question in this state. The courts, whenever presented with this problem, have held the act to be civil in nature. In Gross v. Superior Court, 42 Cal.2d 816, 270 P.2d 1025, the Supreme Court held that section 963 of the Code of Civil Procedure which deals with appeals in special proceedings which are, of course, civil in nature, was applicable to appeals under the Act. The Supreme Court stated (42 Cal.2d at page 820, 270 P.2d at page 1027): 'Sexual psychopathy proceedings are special proceedings of a civil nature which are collateral to the criminal case.' In People v. Gross, 44 Cal.2d 859, 860, 285 P.2d 630, 631, it was stated: 'Sexual psychopathy proceedings are not crimal actions but special proceedings of a civil nature.' In People v. Howerton, 40 Cal.2d 217, 219, 253 P.2d 8, 10, the court pointed out: 'The proceedings under section 5512 of the Welfare and Institutions Code are of a civil nature. [Citations.] Sexual psychopath proceedings need not be heard before the same judge that heard the criminal charge. [Citation.] The guilt of defendant is finally determined when the judgment of conviction is pronounced in the criminal proceeding, and nothing done in the sexual psychopath proceeding could modify or nullify that determination.' In People v. McCracken, 39 Cal.2d 336, 346, 246 P.2d 913, 918, it was pointed out that 'It is obvious therefore that the primary purpose of the Legislature was to protect society against the activities of sexual psychopaths * * *, and that it was not intended to make sexual psychopathy a mitigating circumstance. On the contrary, the sexual psychopath may be removed from society under the Sexual Psychopath Law until he is cured or until he is no longer considered a menace to the safety of others. The court may thereafter resume the criminal proceeding and impose the punishment allowed by law since the confinement as a sexual psychopath is not a substitute for punishment, the entire statutory procedure being civil in nature rather than penal.' In People v. Gross, 139 Cal.App.2d 607, 613, 294 P.2d 88, 92, (appeal dismissed and certiorari denied 351 U.S. 977, 76 S.Ct. 1057, 100 L.Ed. 878), it is stated that section 1200 of the Penal Code does 'not apply to a sexual psychopathy hearing which is a civil proceeding, collateral to the criminal case under which appellant was first arraigned.' In People v. Bachman, 130 Cal.App.2d 445, 448, 279 P.2d 77, 79, the District Court of Appeal came to the same conclusion as had the Supreme Court in Gross v. Superior Court, 42 Cal.2d 816, 270 P.2d 1025, using the following language: 'It having been decided that sexual psychopathy proceedings are special proceedings of a civil nature * * * 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.' And in In re Keddy, 105 Cal.App.2d 215, 217, 233 P.2d 159, 161 the appellate court stated: 'A proceeding provided for by section 5501 of the Welfare and Institutions Code is a proceeding civil in nature, not criminal, and a person committed pursuant to the provisions thereof is not being confined for the commission of a criminal offense but because it has been determined that he is a 'sexual psychopath." See also People v. Olds, 140 Cal.App.2d 156, 294 P.2d 1034; People v. Martinez, 130 Cal.App.2d 239, 278 P.2d 727, 24 A.L.R.2d 350; 44 C.J.S. Insane Persons § 130, and Pocket Part.

In the face of these authorities appellant nevertheless argues that although the act may have originally been conceived by the Legislature as a civil proceeding it has gradually developed into a criminal proceeding. This argument is predicated upon the fact that some procedural safeguards commonly existing in criminal...