McCOMB, J. This is an application for a writ of habeas corpus, seeking (a) the discharge of petitioner from custody on the ground that section 5501 of the Welfare and Institutions Code is unconstitutional, or (b) the release of petitioner on bail pending the hearing in the superior court to determine whether petitioner is a “sexual psychopath" or not.
Facts: Petitioner was convicted in the municipal court on two counts of misdemeanor: (1) Indecent exposure (Pen. Code § 311); and (2) lewd and dissolute conduct (Pen Code, § 647.5).
His motions for a new trial were denied and the court suspended further proceedings, certifying the matter to the superior court pursuant to the provisions of section 5501, Welfare and Institutions Code as amended (Stats. 1950, p. 439), which reads in part as follows:
“ (a) When a person is convicted of a criminal offense, the trial judge, on his own motion, or on motion of the prosecuting attorney, or on application by affidavit by or on behalf of the defendant, if it appears to the satisfaction of the court that there is probable cause for believing such person is a sexual psychopath within the meaning of this chapter, may adjourn the proceeding or suspend the sentence, as the case may be, and may certify the person for hearing and examination by the superior court of the county to determine whether the person is a sexual psychopath within the meaning of this chapter. ’ ’
Petitioner then appealed to the appellate department of the superior court from the order denying his motion for a new trial which appeal is now pending.
On April 27, 1951, petitioner appeared in the superior court, whereupon two psychiatrists were appointed to examine him and the hearing was set for May 7, 1951, and later continued to May 28, 1951.
Petitioner’s application for bail was denied and he was [217]remanded to the custody of the sheriff. He then filed the present application for a writ and this court released him on bail in the sum of $500 pending a hearing upon this writ.
Questions'. First: Is section 5501 of the Welfare and Institutions Code constitutional?
Yes. Petitioner contends that the act is unconstitutional because it (1) denies to petitioner the equal protection of the laws and is not uniform under article I, section 11, of the Constitution of the State of California1; (2) deprives him of his liberty without due process of law in contravention of article I, section 13, of the Constitution2; and (3) places him in jeopardy twice for the same offense contrary to the provisions of article I, section 13, of the Constitution.3
Petitioner’s first and second claims have been settled adversely to his contention by the Supreme Court of the United States in Minnesota ex rel. Pearson v. Probate Court, 309 U. S. 270, 272 [60 S.Ct. 523, 84 L.Ed. 744, 745, 126 A.L.R 530], wherein the court held a similar statute of. the State of Minnesota constitutional and that such statute did not violate the equal protection clause of the Constitution of the United States or the due process clause thereof.
As to petitioner’s third contention, he is not being twice placed in jeopardy for the same offense. A “sexual psychopath” is not committed because he is guilty of a crime. 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.” (In re Moulton,-N.H.-[77 A.2d 26, 28 [5-6]]; Malone v. Overholzer (D.C.), 93 F. Supp. 647 [1]; In re Kemmerer, 309 Mich. 313 [15 N.W.2d 652, 653 [2-4] ] ; People v. Chapman, 301 Mich. 584 [4 N.W. 2d 18, 26 [11]]; State v. Green, 360 Mo. 1249 [232 S.W.2d 897, 900 [1-3]]. See, for a splendid discussion of the subject “Sane Law for Sexual Psychopaths,” Stanford L. Rev., vol. 1, [218]No. 3, page 486 et seq., April, 1949. See, also, 126 A.L.R. (1940) 535 et seq.) Hence petitioner clearly is not being placed in jeopardy twice for the same offense.
Second: Is petitioner entitled to be released on bail pending the determination of whether or not he is a “sexual psychopath”?
Yes. The Constitution of the State of California provides in article I, section 6, as follows: “All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. ...” Section 1272 of the Penal Code of California reads thus: “After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: ... 2. As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor. ...” (In re Torres, 80 Cal.App.2d 579, 581 [1] [182 P.2d 573].)
Mr. Justice Bray in In re Torres, supra, at page 581 thus emphatically states the rule:
“On appeal from a judgment imposing imprisonment in a misdemeanor case, a defendant is entitled to bail as a matter of right. (Pen. Code, § 1272.)”
Hence it is clear under the Constitution, the Penal Code and the decided cases that petitioner was entitled to bail pending his appeal from the order denying his motion for a new trial after conviction of violating sections 311 and 647.5 of the Penal Code which were misdemeanors. This leaves remaining the question as to whether he was entitled to bail pending the hearing of whether or not he was a “sexual psychopath.”
Respondent argues that since an insane person may be held without bail, petitioner, as a “sexual psychopath,” was insane and therefore on an analogous principle to that applicable in insanity cases he could be held without bail pending the determination of whether or not he is a “sexual psychopath.”
The fallacy in this argument is twofold:
(1) A “sexual psychopath” is not an insane person. (People v. Tipton, 90 Cal.App.2d 103, 104 [202 P.2d 330].)
In People v. Tipton, supra, the court said in discussing this subject:
“But one who is declared to be a sexual psychopath is not thereby adjudged to be insane; nor does chapter 4 of the Welfare and Institutions Code so contemplate. While one [219]adjudicated an insane person under Penal Code sections 1368 to 1372 cannot be proceeded against on a criminal charge until he becomes sane, no such condition is imposed by the sections of the Welfare and Institutions Code which provide for the commitment of a sexual psychopath to a state hospital for treatment. One who has been adjudicated a sexual psychopath has not been found to be insane, and under the provisions of section 5502.5 of the Welfare and Institutions Code, when the superintendent of the state hospital has notified the court that in his opinion a sexual psychopath has not recovered from his condition and will not benefit by further treatment, his return to the court for further disposition of his case is specifically provided.” (Italics added.)
Therefore any attempt to draw an analogy between section 5501 of the Welfare and Institutions Code dealing with a “sexual psychopath” and section 5040 et seq. of the Welfare and Institutions Code dealing with insane persons is obviously untenable since the code sections deal with entirely separate and distinct classes of persons.
(2) The people of the State of California through their Constitution have provided in article I, section 6, that “all persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.” (Italics added.)
This mandate of the people cannot be legally set aside by the civil, legislative or judicial branch of the government. It will be observed that the people, who are sovereign, have seen fit to provide that with but one exception, to wit, where a person has been charged with a capital offense, all persons are entitled to bail as a matter of right. Irrespective of the villainy of the accused or the heinousness of his offense, without regard for public opinion, or for the personal views of an individual officer as to the wisdom of the constitutional provision, such provision is binding without qualification upon the courts until the people have by inherited processes legally erased the constitutional mandate.
Only by strict adherence to this principle are we assured of the perpetuity of the guaranties of the Constitution in the equal administration of the laws where there are many judges of differing degrees of education, age, experience and background.
To insure the permanence of our free institutions all judicial officers must conform with the criteria established by the organic law.
[220]No individual or public official is above, beyond or exempt from the mandates of the. Constitutions, state and federal. If judicial officers do not abide by their solemn pledge to protect and defend the Constitution, as well as to observe the limitations prescribed thereby, we must expect from the average citizen only contempt for our most cherished institutions and legal concepts. If such event should occur the inevitable result will be decay of the republic, and government by men—not law—will result. Then, democracy will be abased and totalitarianism will drench the land. If the constitutional guaranties are wrong, let the people change them—not judges or legislators. Two wrongs cannot make a right.
History has demonstrated beyond a doubt that such a guaranty as is set forth in article I, section 6, of the Constitution is necessary for the protection of the citizen, and that it should be preserved at all hazards. Any judicial official who refuses to give his loyalty to this ideal because of his feeling of revulsion at the nature of the offense charged against the accused either does not conceive the doctrine in its full meaning or he profanes the hallowed words of the patriots who convened in Philadelphia in 1787.
In the case of In re Henley, 18 Cal.App. 1 [121 P. 933], the defendant had been arrested and charged with being addicted to the use of stimulants to the extent that he had lost the power of self-control. The statute, 2185'c of the Political Code, read in part as follows: “Whenever it appears by affidavit to the satisfaction of a magistrate of a county, or city and county, that a person is so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control or is subject to dipsomania or inebriety, he must issue and deliver to some peace officer for service a warrant, ...”
It is evident that such statute is analogous to the “sexual psychopath” statute now before this court. In the cited case, in holding that petitioner was entitled to bail pending a hearing, Mr. Justice Burnett made these appropriate remarks : “It appears that bail was denied by said magistrate, but upon what ground does not appear, nor is any reason advanced here for the order except that it is a matter of right under the provision of the constitution of the state that ‘All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.’ (Art. I, sec. 6.) This is a wise and salutary measure, [221]and the scope of it is sufficiently comprehensive to include a person charged with being an inebriate. His right as to bail should certainly not be more restricted than that of a person accused of a grave crime. In the latter contingency no question would be raised except- in the case of a capital offense as provided in the constitution.
‘ ‘ There might be instances under this statute where, for the safety of the individual or of society, it would be proper to deny bail, but unless such a showing is made, the said provision of the constitution should be held, we think, to apply. It is provided in said statute that the officer to whom the warrant of arrest is delivered must ‘arrest arid detain such person until a hearing and examination can be had.’ This, of course, must be read in connection with said constitutional provision, as no one would contend that the legislative enactment could operate to modify or repeal any portion of the constitution.
“ It is ordered that petitioner be admitted to bail in the sum of $250 pending the examination, ...”
A similar conclusion was reached by the Supreme Court of New Mexico in Ex Parte Romero, 51 N.M. 201 [181 P.2d 811, 814 et seq.]
Nor is there any force in the argument that by affording petitioner the rights guaranteed to him by the people of the State of California through their duly adopted Constitution there may be released on bail a person who, for his own or the public safety, should be held in confinement. Sections 5040 et seq. of the Welfare and Institutions Code provides a full,, adequate and complete procedure for the protection of petitioner or society if he is in fact insane. The district attorney is fully apprised of the information relative to petitioner’s condition, and if the latter is mentally ill the district attorney or any other person may have him confined pursuant to the provisions of section 5047 et seq. of the Welfare and Institutions Code. (In re Westcott, 93 Cal.App. 575, 577 [270 P. 247].)
It is ordered that petitioner be permitted to remain on bail pending the determination of the superior court as to whether or not he is a “sexual psychopath.”
Moore, P. J., concurred.
Article I, section 11, California Constitution reads: “All laws of a general nature shall have a uniform operation.”
Article I, section 13, California Constitution reads in part: “No person shall ... be deprived of . . . liberty . . . without due process of law ...”
Article I, section 13, California Constitution reads in part: “No person shall be twice put in jeopardy for the same offense ...”