People v. Perez

LILLIE, J.

Defendant was charged with selling heroin in violation of section 11501, Health and Safety Code. He sold 27 capsules to a narcotic agent for $60. On January 11, 1961, he entered a plea of guilty and moved the court to appoint a psychiatrist to examine him “under section 5355 of the Welfare and Institutions Code.” Thereafter on February 1, 1961, criminal proceedings were suspended and under section 5355, defendant was committed to the Atascadero State Hospital to be returned to the court when the director of the hospital deemed fit. Two days later, on February 3, the court, “with defendant’s consent,” vacated and set aside the order of February 1, 1961; directed the sheriff to file a petition alleging narcotic addiction under section 5360, Welfare and Institutions Code; and continued the case for further proceedings. (Minute order, February 3, 1961.) On April 14, after a review of the file and argument by defendant’s counsel, the trial court denied probation and pronounced judgment

[462]

sentencing defendant to the state prison; from this judgment he appeals.

Appellant contends that the court lacked jurisdiction to set aside the February 1 order committing him to the Atascadero State Hospital; thus, the subsequent judgment of April 14 sentencing him to the state prison is void. He relies upon numerous authorities holding for the general proposition that proceedings outside the jurisdiction of the court are void; and argues that the court’s jurisdiction was lost when it committed him to Atascadero under section 5355 and that until the minimum period of three months expired the court could neither order his return nor proceed further in the criminal case.

Unfortunately the reporter’s transcript contains only those proceedings had before the trial court on January 11 (when defendant entered his plea and moved -the court to proceed under § 5355) and April 14 (the time of sentence); the proceedings of February 1 and February 3 are not included therein, although the clerk’s transcript contains the court’s minute orders of those dates, However, we deem the hiatus in the recital of the lower court’s proceedings in the record before us to be of no particular significance, for it is our opinion that inasmuch as defendant was before the court on a criminal charge (sale of heroin), the only proper procedure for the court to follow to determine if he was a drug addict was that provided by section 5360, Welfare and Institutions Code; and that the general commitment procedure under section 5355 was not applicable and any proceeding taken thereunder was in excess of the court’s jurisdiction, and void. Thus, the order of commitment made pursuant thereto was properly vacated and set aside. The defendant, as well as the trial judge, must have realized this for two days later, on February 3, when the court vacated the order of February 1, it did so (as specifically recited in its minute order) “with defendant’s consent.” Moreover, there appears to have been no objection made by defendant to any action of the court in thereafter proceeding under section 5360, Welfare and Institutions Code, and subsequently in pronouncing judgment sentencing him to the state prison.