In Re Lopez

[685]

Opinion

THE COURT.

On June 17, 1969, while his appeal (1 Crim. 7501) was pending in this court, petitioner filed a petition for a writ of habeas corpus with the Supreme Court of this state. Petitioner, who alleged that he was legally a patient of and under the jurisdiction of the California Department of Mental Hygiene as an adjudicated sexual psychopath,

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complained of his detention in the segregation unit at San Quentin Prison without any care or treatment. In his prayer he sought an order to show cause, directed to the Director of the Department of Corrections and the warden of the prison, “as to why said detention is believed to be valid and applying to Petitioner, when in fact he is a ward of the Department of Mental Hygiene, and to further show, if possible, why Petitioner should not be placed at the California Medical Facility, at Vacaville, to secure the Care and Treatment that is guaranteed to him by the Welfare and Institutions Code, and as required by a Court of law, to further show why he, the Warden, should not be injoined from further inflicting more of the herein complained of unusual punishments upon the person of your Petitioner.”

An order to show cause why the relief prayed for in the petition should not be granted was issued by the Chief Justice on August 13, 1969, with a return day of August 29th. On August 27th, the proceeding was transferred to this court. On application of the Attorney General the time within which to serve and file a return was extended; counsel who had been appointed to represent petitioner in his pending appeal was appointed to represent him in these proceedings; and the matter was placed on calendar to be heard with the appeal.

In the return filed by the Attorney General on behalf of the respondent and the state, he points out that the provisions of section 6326 (formerly § 5518) of the Welfare and Institutions Code provide that institutional units established for the custodial care and treatment of mentally disordered sex offenders “shall be administered in the manner provided by law for the government of the institution in which such unit is established.” He contends that under the law the Director of Corrections “shall have full administrative authority and responsibility for operation of the [psychotic and diagnostic] clinics” which are provided at “state prisons or institutions under the jurisdiction of the Department of Corrections.” (See, Pen. Code, § 5079; and