People v. Warren

This is an appeal from a judgment committing Elwood Lee Warren to the Department of Mental Hygiene, for an indeterminate period, as a sexual psychopath, and from orders denying his motions (1) for a new trial in the sexual psychopathy proceedings; (2) for a copy of the transcript at the expense of the county; (3) for admission to bail pending appeal; and (4) for a stay of execution pending appeal.

The order denying the motion for a new trial was not appealable. (Code Civ. Proc., § 963.) The appeal from the order denying the motion to furnish a copy of the transcript at the expense of the county has been abandoned. No contention with respect thereto is urged. The appeal from the orders denying the motions for admission to bail and for stay of execution pending appeal may be deemed to have been waived because, even though referred to in appellant’s brief, no contention, argument, or authorities in support of their reversal have been presented. (People v. Hite, 134 Cal.App.2d 536 , 537 [ 286 P.2d 425 ].) Under these circumstances the appeal from the orders should be dismissed.

Elwood Lee Warren, the defendant and appellant herein, was convicted of the offense of indecent exposure, viz., a violation of section 311 of the Penal Code; was certified by the municipal court before which he had been tried to the Superior Court of San Bernardino County as a probable sexual psychopath; was the subject of sexual psychopathy proceedings thereafter conducted in the latter court; was found to be a sexual psychopath; was ordered placed temporarily at Atascadero State Hospital for observation and diagnosis pursuant to the provision of section 5512 of the Welfare and Institutions Code; was diagnosed as a sexual psychopath by the superintendent of that hospital and returned to the superior court for further proceedings; was adjudged a sexual psychopath by that court and committed for an indeterminate period to the Department of Mental Hygiene for placement in Atascadero State Hospital; demanded a trial by jury as authorized by section 5512.5 of the Welfare and Institutions

The provisions of section 5503 of the Welfare and Institutions Code with respect to the giving of notice to relatives direct only that notice of the sexual psychopathy hearing should be served upon the district attorney, and on such relatives of the person certified for examination “known to be residing in the county as the judge deems necessary or proper.” There is no showing that there were any known relatives of the defendant residing in the County of San Bernardino. Moreover, the giving of notice is a matter committed to the exercise of a sound legal discretion by the trial court. The order in question provided that no notice be given to any of the defendant’s relatives. The record does not support a conclusion that the making of this order constituted an abuse of discretion.

The contention that the instant proceedings are defective because the defendant was not observed for a 90-day period is without even a semblance of merit. Section 5512 of the Welfare and Institutions Code directs placement of the sexual psychopath in a state hospital of the Department of Mental Hygiene for observation and diagnosis “for a period not to exceed 90 days,” and that the superintendent of such hospital shall make a report to the court respecting his diagnosis and recommendation “within the 90-day period.” (Italics ours.) Obviously, these provisions impose a limitation upon the time within which the report in question shall be made, rather than a requirement directing observation of the sexual psychopath for that time, as contended by the defendant.

The contention that the evidence is insufficient to support the judgment is directed to an attack upon the acceptability of the opinion of the psychiatrists who testified that the defendant was a sexual psychopath, and to a claim that the showing made does not establish that he was a person of

The defendant contends that the opinions of the three psychiatrists who testified that he was a sexual psychopath are untrustworthy and should be disregarded because they relied upon information contained in the report of the State Bureau of Criminal Identification and Investigation to the effect that he had been arrested for sex offenses other than those heretofore, related, without any showing with respect to /the disposition of the charges leading to such arrests. However, the evidence adequately establishes that the opinion or one of these psychiatrists, i.e., the superintendent of the slate hospital, and of the staff of that hospital, was based upon thW observations of the defendant while at the hospital, including interviews with him; upon the fact that he had been

The contention that the evidence does not support the conclusion that the defendant was a sexual psychopath within the meaning of the statute is based upon the claim that his alleged abnormal mental condition is not of that type to which the statute is directed. The position of the defendant in this regard is not entirely clear. Primarily it seems to be based upon an assumption that his mental condition is not of the type requiring custodial care and treatment for the protection of society as declared in People v. McCracken, 39 Cal.2d 336 [ 246 P.2d 913 ] and People v. Wells, 112 Cal.App.2d 672 [ 246 P.2d 1023 ], A fair consideration of the evidence belies such an assumption. There is no merit to the contention.

A further claim of error is based on the court’s refusal to give six instructions. Five thereof properly were refused because repetitious. The sixth instruction detailed the procedure outlined in section 5512 of the Welfare and Institutions Code; was not pertinent to the issue whether the defendant was a sexual psychopath; and thus was not essential to the jury’s determination in the premises. There was no error in the refusal. Nevertheless, the defendant argues that this instruction was pertinent because without it the jury was not advised of the nature of the proceedings at hand. The record indicates the contrary. He also argues that if the requested instruction had been given the jury would have been inclined to accept the testimony of the psychiatrist who stated that the information available to her did not justify the conclusion that he was a sexual psychopath. The relationship between these factors is not detailed and, in our opinion, is nonexistent.

The defendant also contends that the judgment should be reversed because the opinion of one of the psychiatrists, that the defendant was a sexual psychopath, was admitted over objection that there was no foundation therefor.