People v. Browning

California Court of Appeal Jan 2, 1964 No. Crim. 8994Published

Before: Jefferson

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Holding. The court held that the defendant waived his rights to present witnesses and cross-examine them by stipulating to submit the matter on the psychiatrist's report without objection. Furthermore, the court held that unsworn assertions made by the defendant outside the record cannot be considered on appeal.

Issues

Whether the defendant was denied a fair hearing by being precluded from presenting witnesses and cross-examining witnesses.
Whether the defendant's unsworn assertions in his notice of appeal regarding the denial of his right to subpoena witnesses can be considered on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since this contention was not presented to the court at the hearing and is not a part of the record, it cannot be considered on appeal.”

JEFFERSON, J.

Defendant was charged with two counts of lewd conduct with children in violation of section 288 of the Penal Code. Defendant entered a plea of guilty to one count, the other was dismissed. Further proceedings were suspended and defendant was certified by the municipal court to the superior court as a probable sexual psychopath. Two doctors were appointed to examine defendant and to file

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reports under the sexual psychopathy act. After a hearing on June 3, 1960, at which it was stipulated that the issue of sexual psychopathy be submitted on the written reports of the doctors appointed, the court found defendant to be a probable sexual psychopath and committed him to a state hospital for observation and diagnosis. Subsequently, a report was made to the court by the superintendent of the hospital, and on August 15, 1960, defendant was found to be a sexual psychopath and was recommitted and ordered confined in the state hospital for an indeterminate period.

On March 13, 1962, he was returned to the superior court, pursuant to section 5517 of the Welfare and Institutions Code, adjudged still to be a sexual psychopath, and recommitted to the Department of Mental Hygiene for placement for an indefinite period in a facility of the Department of Corrections for treatment of sexual psychopaths.

On January 11, 1963, defendant was again returned to the superior court pursuant to section 5517. At this hearing it was stipulated by counsel for defendant that the court could “read and consider” the written report of Dr. Robert P. Streitel (a court appointed psychiatrist), filed with the court on January 2, 1963, and that, “the defendant agreed to submit the matter” on the basis of this report. The court, after indicating that it had read and considered the report and also the probation officer’s report of November 21, 1962, found defendant “yet to be a sexual psychopath and not amenable to treatment,” and again recommitted him for an indeterminate period. Defendant appeals from the order of January 11, 1963.

Defendant contends that the order should be reversed and a new hearing granted, because “the court erred” in not permitting him to present witnesses in his own behalf and in not permitting him the right to cross-examine the witnesses who testified against him, thus denying him the right to a fair hearing. We find no merit in this contention.

People v. Browning

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JEFFERSON, J.

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