People v. Gallegos

Opinion

REPPY, J.

The proceedings arose out of the petition for commitment of appellant as a noncriminal narcotic drug addict. A hearing before the court was held pursuant to sections 3100.6, 3104 and 3106 of the Welfare and Institutions Code. The petitioning officer was examined and cross-examined. Pursuant to stipulation of respective counsel, without the defendant joining, testimony by the physician who made the medical examination under section 3100.6

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was waived and his report was received in evidence in lieu thereof. The court found that appellant was a narcotic drug addict and committed him to the Director of Corrections. Appellant promptly requested a

[95]

jury trial. (Welf. & Inst. Code, § 3108.) Before the time for trial appellant obtained new counsel. He, appellant, and counsel for the People joined in a jury waiver. The trial was conducted, and the court again found that appellant was a narcotic addict and ordered him committed and delivered to the Director of Corrections at Corona. The appeal is from the second commitment order.

Only two points remain in contention. The more fundamental one is that there was no legal basis for waiving the jury at the reconsideration trial and having a second court trial in lieu thereof; that the second commitment order is void; that the prior jury waiver was ineffective because it was given on an erroneous assumption; that the proceedings should be remanded to the trial court so that appellant can be advised by the judge that if he wants a reconsideration hearing, it must be before a jury. The second point appellant raises is that he should have personally joined in any waiver of in-court testimony by the medical examiner.

We take up the first contention. The case of

People

v.

Davis

(1969) 273 Cal.App.2d 257 [77 Cal.Rptr. 903] points to the circumstance that prior to 1967 the statutory provision for a reconsideration hearing was that it might be before a judge or jury; that in 1967 the law was changed to provide that the reconsideration hearing should be before a jury. The