People v. Fisher

Opinion

BROWN (Gerald), P. J.

Gregory David Fisher appeals after a juiy found him guilty of burglary (and while committing the burglaiy he was armed with a deadly weapon and assaulted a person), forcible rape, oral copulation (with the finding it was done by means of force and violence), sodomy, assault with a deadly weapon (with a finding he used a firearm) and grand theft. He was diagnosed as a mentally disturbed sex offender and after examination was committed as a mentally retarded sex offender pursuant to Welfare and Institutions Code section 6509.

On October 18, 1973, Fisher entered the apartment of Monty Hewitt, threatened her with a pair of sewing scissors and forced her to participate in various sexual acts. The intruder asked Hewitt if her family had a gun. When she told him they did not, he asked, “If you don’t, then what’s this?” and stuck her husband’s pistol in her side. Fisher then threatened Hewitt and her family with violence if she reported the attack. As he was leaving through a window, Fisher told Hewitt he worked at the Sterling

[177]

Commissary. Hewitt identified him at the Commissary some eight days later. Fisher was taken into custody and given his

Miranda

rights. He gave an alibi and made the statement, “It’s a game to me, man.”

The People first argue the appeal must be dismissed since there is no final judgment or order from which to appeal. Penal Code section 1237 provides: “An appeal may be taken by the defendant: 1. From a final judgment of conviction .... A sentence, an order granting probation, or the commitment of a defendant for insanity, or the indeterminate commitment of a defendant as a mentally disordered sex offender shall be deemed to be a final judgment within the meaning of this section. The commitment of a defendant for narcotics addiction shall be deemed to be a final judgment within the meaning of this section 90 days after such commitment. Upon appeal from a final judgment the court may review any order denying a motion for a new trial....”

Section 1237 does not set out a commitment for mental retardation as an appealable order. However, Fisher was also found to be a mentally disordered sex offender who, because of his attitude and low intelligence, would not benefit from treatment in a state hospital. In such an instance, the court should return the offender to the court where he was tried for sentencing, an indefinite commitment in an institution for mentally disordered sex offenders, or “such other suitable disposition of the case as the court deems necessary.” (Welf. & Inst. Code, § 6316.) Here the judge held another hearing on the possibility Fisher was mentally retarded; on finding he was, Fisher was sent to an institution. A review of the record shows the criminal proceedings remain suspended under Welfare and Institutions Code section 6302, subdivision (a); the mentally disordered sex offender proceedings have never been terminated. Fisher was committed as a mentally disordered sex offender who is also retarded. This order is appealable under Penal Code section 1237.