In Re Krieger

Petitioner Richard Frederick Krieger, confined by the Director of Corrections at the California Men's Colony, East Facility, Los Padres, San Luis Obispo County, for an indeterminate period as a mentally disordered sex offender filed this petition for a writ of habeas corpus upon the ground that there was no valid underlying criminal conviction at the time he was recertified by the Municipal Court of the Los Angeles Judicial District to the Superior Court of Los Angeles County under section 5518 of the Welfare and Institutions Code on September 30, 1966. We conclude that we are compelled to grant the writ and order petitioner released from custody.

On September 15, 1965, petitioner pleaded guilty to a violation of section 2141 of the Business and Professions Code (practicing medicine without a license) in the Municipal Court of the Los Angeles Judicial District.

On October, 6, 1965, the municipal court certified petitioner to the Superior Court of Los Angeles County as a possible mentally disordered sex offender (hereafter "a MDSO"). As a result of proceedings pursuant to section 5512 of the Welfare and Institutions Code, petitioner was committed to the Atascadero State Hospital for an indeterminate period as a MDSO, on March 17, 1966.

On March 29, 1966, the municipal court, with a deputy city attorney present but in the absence of petitioner and his counsel, ordered: "On the Court's Motion, the plea of Guilty is set aside and matter is dismissed in the interest of justice. Defendant has been committed to the Atascadero State Hospital for an indeterminate time. Bail ordered exonerated."

Upon certification under section 5517 of the Welfare and Institutions Code that petitioner would not benefit from further treatment at the state hospital, but was still considered to be a danger to society, he was returned to the municipal court for proceedings pursuant to section 5518 of the Welfare and Institutions Code. On September 30, 1966, the municipal court, again with a deputy city attorney present but in the absence of defendant and his counsel, ordered: "The Order made on March 29, 1966 is ordered vacated and set aside — nunc pro tunc as of said date. [¶] Proceedings remain *Page 888 adjourned. [¶] Defendant recertified to Department 95 of Superior Court re Sections 5512 and 5518 Welfare Institutions Code. [¶] Recertification of Mentally Disordered Sex Offender issued."

On October 14, 1966, the superior court committed petitioner to the Department of Mental Hygiene for an indeterminate period as a MDSO.

On October 31, 1966, the municipal court again made an order similar to the order of March 29, 1966, and dismissed "this matter" on its own motion.