People v. McDonald

KINGSLEY, J

Defendant was charged with three counts of indecent exposure, in violation of subdivision 1, of section 314 of the Penal Code. A prior conviction of violation of the same section was also charged. Defendant admitted the prior, but pled not guilty to the three offenses herein involved. After a trial by jury, he was found guilty as charged. The criminal proceedings were suspended and, after the receipt of medical reports, he was committed to Atascadero State Hospital for observation, purportedly under section 5512 of the Welfare and Institutions Code.

1

Nothing in the record

2

shows that any attempt was made to comply with the procedural requirements of sections 5501 through 5509 of the Welfare and Institutions Code. No formal notice of hearing was given, he was not advised by the judge of his rights to make a reply and to produce witnesses (Welf. & Inst. Code, § 5503), the court-appointed psychiatrists did not testify (Welf. & Inst. Code, §§ 5503 and 5506), and defendant was not afforded any opportunity to produce evidence on his own behalf. (Welf. & Inst. Code, §§ 5503 and 5508.) The proceedings were, thus, lacking in due process and void.

(Specht

v.

Patterson

(1967) 386 U.S. 605 [18 L.Ed.2d 326, 87 S.Ct. 1209] ;

People

v.

Succop

(1967) 67 Cal.2d 785 [63 Cal.Rptr. 569, 433 P.2d 569].)

It is true that defendant was in court, and represented by counsel. But there was no express waiver by anyone of the constitutionally required procedural safeguards, much less any waiver by defendant himself. Mere failure to object is not here an equivalent of a knowing and intelligent waiver.

(In re Jones

(1964) 61 Cal.2d 325 [38 Cal.Rptr. 509, 392 P.2d 269];

In re Kramer

(1967)

ante,

p. 287 [64 Cal.Rptr. 686].)