Russell v. Superior Court

[62]

DRAPER, J.

This proceeding requires, construction of code, sections concerning sexual psychopaths. In October, 1956, petitioner pleaded guilty to loitering about a school where children attend, a misdemeanor (Pen. Code, § 647a, subd. (2)). The municipal court, finding probable ■ cause to believe petitioner to be a sexual psychopath, certified him to the superior court. After proper proceedings, including placement in Atascadero State Hospital for observation, that court committed him for an indefinite period to the Department of Mental Hygiene for placement in a state institution (Welf. & Inst. Code, § 5512). In 1959, he was returned from California Men’s Colony to Atascadero. On April 15, 1959, the superintendent of that hospital certified to the superior court that petitioner “has been treated to such an extent that he will not benefit by further care and treatment in the hospital and is not a menace to the health and safety of others. ’ ’ This certification specifies that it is made under section 5517, subdivision (b) of Welfare and Institutions Code, and is in the precise language of that subdivision. This certification was filed with the court April 30 and the court promptly ordered return of petitioner. On May 14, the court on its own motion “institute(d) proceedings for redetermination of the defendant’s condition in regard to sex psychopathy,” purporting to act under section 5519, Welfare and Institutions Code. Psychiatrists were appointed to examine petitioner and a date set "for hearing. Before hearing, petitioner applied to this court ¡for writ of mandate requiring respondent court to return petitioner to the municipal court to await further action withj reference to the criminal charge, and for writ of prohibition restraining respondent from further proceedings under the sexual psychopathy provisions of the code. Alternative writs were issued.

Section 5517 is mandatory when the opinion certified by the superintendent, in proceedings instituted under that section, is under subdivision (b). In such ease, the committing court shall forthwith order return of the person to that court, “and shall thereafter cause the person to be returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge.” The next paragraph provides that “Such court shall resume the proceedings. ...” This language appears to leave no discretion in the committing court.