Barzee

Found to be a sexual psychopath, defendant in 1954 was committed to the Department of Mental Hygiene for placement in San Quentin prison for treatment. (Welf. & Inst. Code, §§5512, 5518.)

In 1961 defendant, through counsel, filed in the committing court a document by which he “requests this court to institute the proceedings within the purview of Section 5519, ’ ’ and “to set a date for hearing on the issue of his present mental status.” The court ordered, and the director of mental hygiene filed, a detailed report. It concluded that defendant “has improved, but has not in our opinion recovered from his sexual psychopathy and is still a menace to the health and safety of others, including children under fourteen years of age.” Upon receipt of this report, the court denied defendant’s request for hearing, and defendant appeals.

Defendant first contends that upon his request under section 5519 the court must conduct a hearing at which he is present and has the right to present evidence. He misconstrues the statute. It provides that on defendant’s motion the court “may” require a report from the department, and upon receipt of such report “may” order return of the committed person…