People v. Thompson, Cr. 4545

• Decision Date: 07 February 1951
• Docket Number: Cr. 4545
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. THOMPSON.

Page 272

227 P.2d 272

102 Cal.App.2d 183

PEOPLE v. THOMPSON.

Cr. 4545.

District Court of Appeal, Second District, Division 3, California.

Feb. 7, 1951.

Al Matthews, Doris R. Baker, Harold J. Ackerman, and Robert P. Dockeray, all of Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Gilbert Harelson, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Defendant, Edward M. Thompson, appeals from judgment of conviction of violation of section 288, Penal Code.

Defendant was charged, in two counts, of violations of section 288 of the Penal Code, upon the persons of two sisters, female children aged seven years [twins]. He pleaded guilty to count I and count II was subsequently ordered off calendar. At approximately the same time the plea of guilty was entered, he filed his affidavit of sexual psychopathy under the provision of section 5501 of the Welfare and Institutions Code. He was thereafter adjudged a sexual psychopath and a menace to the health and safety of others and committed to the State Hospital at Patton for an indeterminate period. Defendant was returned to the trial court, pursuant to a minute order of March 27, 1950, and judgment and sentence to state prison were pronounced on June 15, 1950 when his application for probation was denied.

This appeal involves the construction of sections 5517 and 5518, Welfare and Institutions Code, which have apparently not been before an Appellate Court prior to this time. Section 5517, as amended in 1949, reads as follows: 'Whenever a person who is committed for an indeterminate period to the department for placement in a state hospital as a sexual psychopath (a) has recovered from his sexual psychopathy to such an extent that in the opinion of the superintendent the person is no longer a menace to the health and safety of others, or (b) has been treated to such an extent that in the opinion of the superintendent the person will not benefit by further care and treatment in the hospital and is not a menace to the health and safety of others, or (c) has not recovered from his sexual psychopathy, and in the opinion of the superintendent the person is still a menace to the health and safety of others, the superintendent of the hospital and the Director of Mental Hygiene shall certify to the committing court their opinion under (a) (b) or (c), as the case may be, including therein a report, diagnosis and recommendation concerning the person's future care, supervision or treatment. If the opinion so certified is under (a) or (b), the person shall be returned to the court to await the further action of the court with reference to the criminal charge against him.

'The court shall resume the proceedings, upon the return of the person to the court, and after considering all the evidence before it may place the person on probation for a period of not less than five years if the criminal charge permits such probation and the person is otherwise eligible for probation.'

Section 5518, Welfare and Institutions Code, reads, in part, as follows: 'If the opinion so certified is under subdivision (c) of Section 5517, the committing court shall forthwith order the return of the person to await further action with reference to the criminal charge against him, and shall cause the person to be returned to the court in which the case originated. Such court shall resume the proceedings and after considering all the evidence before it, if satisfied that the person has not recovered from his sexual psychopathy and is still a menace to the health and safety of others, the court shall make an order recommitting the person for an indeterminate period to the Department of Mental Hygiene for placements in a state institution or institutional unit for the care and treatment of such sexual psychopaths designated by the court. As such hearing, the person shall be entitled to present witnesses in his own behalf, to be represented by counsel and to cross-examine any witnesses who testify against him. * * *

'The court shall cause the person so recommitted to be delivered to the state institution or the institutional unit so designated. The person shall remain therein or in any other such institution or institutional unit to which he may be transferred by the Director of Mental Hygiene until the person is no longer a menace to the health and safety of others. Thereupon the proceedings set forth in Section 5517 shall be followed with respect to the certifying of an opinion to the committing court and the release of the person thereby.'

On March 16, 1950, Dr. Gericke, Superintendent of Patton State Hospital, wrote to Judge Fricke as follows: 'On December 21, 1949, Edward M. Thompson #3, case No. 49425, was admitted to Patton State Hospital as a sexual psychopath. He had been arrested for violation of Section 288 of the Penal Code for molesting minor children. We find that he is on parole from Walla Walla, Washington, and we have a letter from the Board of Prison Terms and Paroles in Seattle, signed by Lou Kessler, Chief State Parole Officer, informing us that they will accept subject if he is delivered to the King County Jail, Seattle, Washington. Inasmuch as this subject has not completed his sentence in Walla Walla and will not benefit by further care and treatment at Patton State Hospital except for the fact that he is isolated from Society, would there be any way in which we could make it possible to deport him to the State of Washington? Would you advise our returning him to the court with the information that he will not benefit by further care and treatment in order that the court might take further action in the case?'

On March 21, 1950, Judge Fricke wrote to Dr. Gericke, as follows: 'Replying to your letter of the 16th regarding Edward M....