People v. Whelchel

• Decision Date: 27 October 1967
• Docket Number: Cr. 2812
• Citation: 63 Cal.Rptr. 258,255 Cal.App.2d 455
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sandra Sue WHELCHEL, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Donald WHELCHEL, Jr., Defendant and Appellant.
• Court: California Court of Appeals

Page 258

63 Cal.Rptr. 258

255 Cal.App.2d 455

The PEOPLE, Plaintiff and Respondent, v. Sandra Sue WHELCHEL, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Donald WHELCHEL, Jr., Defendant and Appellant.

Cr. 2812.

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

Oct. 27, 1967.

[255 Cal.App.2d 457] George P. Andreos, La Jolla, for appellant.

Thomas C. Lynch, Atty. Gen., Los Angeles, for defendant.

OPINION

COUGHLIN, Associate Justice.

Sandra Sue Whelchel and Donald Whelchel, Jr., appeal from orders committing them under Welfare and Institutions Code § 3050 as persons in imminent danger of becoming narcotic addicts.

Preliminarily appellants pled guilty before the Municipal Court to the misdemeanor offense of possession of dangerous drugs, a violation of Health and Safety Code § 11910; were certified to the Superior Court for determination of the question whether they were addicted or in imminent danger of becoming addicted to narcotics; and subsequently appeared before three different judges, each conducting a separate stage of the proceedings culminating in their commitment. They were arraigned on the certification before one of the judges who advised them the purpose of the proceedings was to determine whether or not they were addicted or in imminent danger of becoming addicted to narcotics; appointed two doctors to examine them; set a hearing in the matter at a time and place designated; and also advised them they were entitled to be represented by an attorney at all stages of the proceedings. They were not then advised, as required by Welfare and Institutions Code § 5628, of their 'rights to make a defense to such charge and to produce witnesses in relation thereto.' At the arraignment appellants expressed the belief they did not need an attorney and none then was appointed for them. However, thereafter on the same day an attorney was appointed to represent them. They were given the required notice of the time and place of the hearing. On the date scheduled the two appointed doctors appeared at the hearing, which was conducted before a second judge; only one of them testified; and a certificate signed by both of them was filed. The doctor who was called as a witness testified that, although not then addicted, both appellants were in imminent danger of becoming addicted. The certificate signed by both doctors expressed the same opinion. By judgment entered on the same day, the court found each appellant 'is a narcotic drug addict or a person who by reason of repeated use of narcotics is in imminent danger of becoming addicted to the use of narcotics,' and committed each 'to the Director of Corrections for placement as provided for by law.' Appellants demanded a trial by jury which was held before a third judge. At this hearing, over objection, they were called as witnesses by the deputy district attorney and compelled to testify. The examination was conducted under former Code of Civil Procedure § 2055. Appellants' objection was premised upon their constitutional privilege they should not be compelled to be a witness against themselves in any criminal proceeding. The jury found they were in imminent danger of becoming narcotic addicts. Thereupon the court ordered execution of the former commitment order.

Appellants seek reversal upon the ground the failure of the court to inform them at the time of their arraignment they had a right to make a defense to the charge against them and to produce witnesses in relation thereto and the further failure to require the testimony of two medical doctors at the time of the initial hearing rendered the order of commitment void; the order compelling them to testify was error; they were not allowed a reasonable time between arraignment and the initial hearing; the evidence produced at the initial hearing was insufficient to support the order of commitment then made; the evidence at the jury trial was not sufficient to sustain the verdict; and they were not given a physical examination.

It is settled that 'jurisdiction to enter an order of civil commitment to the narcotic addict rehabilitation program 'depends on Strict compliance with each of the specific statutory prerequisites for maintenance of the proceeding. " (People v. Victor, 62 Cal.2d 280, 290, 42 Cal.Rptr. 199, 205, 398 P.2d 391, 397; In re Cruz, 62 Cal.2d 307, 313, 42 Cal.Rptr. 220, 398 P.2d 412; In re Raner, 59 Cal.2d 635, 639, 30 Cal.Rptr. 814, 381 P.2d 638; In re Gonzales, 246 A.C.A. 344, 346, 54 Cal.Rptr. 689.) One such prerequisite is prescribed by Welfare and Institutions Code § 5564 which requires the judge to compel the attendance of at least two medical examiners at the initial hearing who shall examine the person alleged to be a narcotic addict and 'testify before the judge as to the result of the examination.' It is noteworthy that Welfare and Institutions Code § 5566 requires the medical examiners to sign a certificate certifying they have examined the alleged narcotic addict and 'as a result of the examination, have testified under oath before the court' to the facts therein set forth. The two medical examiners in the case at bench filed a certificate in the prescribed form. The record in the case belies the statement therein they testified under oath in court, as only one of the examiners testified. The purpose of the statutory requirement that both examiners testify is to place them under oath and subject them to examination respecting their findings. The failure to comply with the requirement that both medical examiners shall testify requires a reversal. (People v. Victor, supra, 62 Cal.2d 280, 290, 42 Cal.Rptr. 199, 398 P.2d 391; In re Pizzo, 221 Cal.App.2d 597, 598, 34 Cal.Rptr. 576.)

Welfare and Institutions Code § 5628 prescribes an arraignment of the person charged as a narcotic addict and provides: 'The judge shall then inform him of his rights to make a defense to such charge and to produce witnesses in relation thereto.' The purpose of this provision is to advise the person charged of the nature of the proceedings in order that he might determine whether to represent himself or be represented by counsel, and in the event of the former, to advise him of the nature and extent of his participation in the hearing. In the case at bench the trial judge erred in failing to comply with the statute. However, in light of the fact counsel was appointed to represent appellants, the failure to previously advise them they might make a defense to the charge against them and to produce witnesses in relation thereto was of no consequence. The attorney representing them knew of their rights. The record indicates he conveyed this information to them. Under such circumstances, the prerequisite that appellants be informed of their rights in the premises was accomplished indirectly, and satisfactorily complied with the jurisdictional requirements in the premises. Appellants, in support of their position, rely upon the decisions in In re Jones, 61 Cal.2d 325, 38 Cal.Rptr. 509, 392 P.2d 269; In re Singh, 234 Cal.App.2d 455, 44 Cal.Rptr. 338, and In re Gonzales, supra, 246 A.C.A. 344, 54 Cal.Rptr. 689, holding a failure to comply with the notice of hearing requirements of the statute was a jurisdictional defect. The jurisdictional prerequisite under review in the case at bench is the requirement that the person charged as a narcotic addict be arraigned upon the charge and advised of his rights. The exact time or method by which this advice is conveyed to the person charged is not a jurisdictional prerequisite.

In light of further proceedings before the trial court, it is proper to consider other contentions of appellants.

The claim the subject of a narcotic addiction rehabilitation proceeding may not be compelled to testify in a hearing to determine his narcotic addiction status is without merit.

The Federal and State Constitutions in identical language declare that no person shall 'be compelled, in any criminal case, to be a witness against himself.' (United States Const., Amend. V; Calif.Const., Art. I, § 13.) In California, by statutory declaration, to the extent conferred by either of these constitutional provisions, a defendant in a criminal case has the privilege not to be called as a witness and not to testify. (Evid.Code § 930); and every person has the privilege to refuse to to disclose any matter that may tend to incriminate him. (Evid.Code § 940.) The constitutional provisions generally have been described as conferring a right to remain silent. They are exceptions to the general rule that no person may refuse to testify as a witness. (Evid.Code § 911.) The privilege not to be called as a witness may be asserted only by a defendant in a criminal proceeding. (In re Vaughan, 189 Cal. 491, 495, 497, 200 P. 353, 24 A.L.R. 858; West Coast etc. Co. v. Contractors' etc. Bd., 72 Cal.App.2d 287, 301, 164 P.2d 811; Brophy v. Industrial Acc. Comm., 46 Cal.App.2d 278, 283, 115 P.2d 835.) On the other hand, the privilege not to disclose any incriminating matter may be asserted by any person either in a civil or criminal proceeding (Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527; Murphy v. Waterfront Com'n of New York Harbor, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678; ...