Opinion
Rehearing Denied Sept. 20, 1963.
For Opinion on Hearing, see 36 Cal.Rptr. 609, 388 P.2d 881.
Cameron & Foushee, F. Morton Cameron, and S. A. Foushee, San Diego, for petitioner.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for respondent.
COUGHLIN, Justice.
The petitioner herein, Robert Espinoza Rodriguez, is confined under an order committing him for treatment as a narcotic addict pursuant to the provisions of § 6506 of the Penal Code; claims that he was illegally detained in custody pending the hearing which resulted in that commitment; contends that, under the ruling in the case of In re Raner, 59 A.C. 657, 660-663, 30 Cal.Rptr. 814, 381 P.2d 638, this illegal detention deprived the court of jurisdiction to enter a subsequent order of commitment; and seeks release by means of habeas corpus.
The claimed illegality of the detention in question is attributable to the alleged invalidity of a predetention order, in a proceeding to declare Rodriguez a narcotic Section 6502 of the Penal Code authorizes the court to order a person confined pending hearing if the petition alleging him to be a narcotic addict is accompanied 'by the affidavit of a physician alleging that he has examined such person within three days prior to the filing of the petition and has concluded that, unless confined, such person is likely to injure himself or others or become a menace to the public.' Strict compliance with the provisions of this section is a prerequisite to the detention of such a person pending hearing. (In re Raner, supra, 59 A.C. 657, 661, 30 Cal.Rptr. 814, 816, 381 P.2d 638.) In the instant case, the petition to declare Rodriguez a narcotic addict, the predetention order, and the affidavit in support thereof, were filed on September 24th, which was a Monday. The affidavit alleged that Rodriguez had been examined by the physician making it on September 20, which was the preceding Thursday. Thus, the examination in question was conducted four days, instead of within three days, prior to the filing of the petition. The affidavit and the order of detention based thereon did not comply strictly with the requirements of § 6502. Consequently, the petitioner's detention pursuant to that order was illegal.
In opposition to the instant application for a writ of habeas corpus, it is urged that §§ 12 and 12a of the Code of Civil Procedure and § 6800 of the Government Code applied to the instant situation and authorized the making of the detention order in question. This contention is without merit. These code sections refer to an act which must be done within a designated period of time, and when the last day of that period is a holiday authorize the doing thereof on the next day which is not a holiday. On the other hand, § 6502 of the Penal Code refers to an event which has occurred within a designated period of time. Stated otherwise, the former sections apply to the time within which an act must be performed, whereas the latter section refers to the time during which a designated event occurred. The period within which the law requires an act to be done is extended by §§ 12 and 12a of the Code of Civil Procedure and § 6800 of the Government Code. On the other hand, the act authorized by § 6502, i. e., issuance of an order of detention, may occur only when the affidavit upon which it is based shows that the examination of the person to be detained has taken place during a designated period. Under the latter section the period of time identifies the event the existence of which confers authority on the court to make its order. The situation thus presented does not involve an extension of time within which to do the act.
Where the provisions of a statute require that an act, to be valid, shall take place within a designated period of time prior to the happening of an event, the fact that any day during that period is a holiday has no effect upon the length of that period. (Steele v. Bartlett, 18 Cal.2d 573, 574, 116 P.2d 780; Griffin v. Dingley, 114 Cal. 481, 483, 46 P. 457.) Although such period-of-time provisions are not strictly analogous to that contained in § 6502 of the Penal Code, the decisions applying them are authority for the position that not all period-of-time requirements are subject to the extensions prescribed by §§ 12 and 12a of the Code of Civil Procedure and § 6800 of the Government Code.
The evidence presented to the court in the proceedings at bar by the physician's affidavit, did not establish facts which, under § 6502 of the Penal Code, authorized the court to make an order of detention pending hearing. (cf. Van Zanten v. Superior Court, 214 A.C.A. 540, 543, 29 Cal.Rptr. 625.)
The writ of habeas corpus is granted and petitioner is ordered discharged from custody insofar as he is being detained under
GRIFFIN, P.J., and GERALD BROWN, J., concur.