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District Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Ernest BALLIN, Defendant and Appellant.

Cr. 11268.

Decided: September 06, 1966

Niles P. Koines, Los Angeles, under appointment by the District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Andrea Sheridan, Deputy Atty. Gen., for plaintiff and respondent.

Defendant entered a plea of guilty to the charge that he was in possession of heroin for purpose of sale (Health and Saf. Code § 11500.5), and admitted four alleged prior felony convictions.   Criminal proceedings were subsequently suspended and, after proceedings were instituted pursuant to section 6451 of the Penal Code (now Welf. & Inst. Code § 3051), the court, on October 14, 1964, found defendant to be a narcotic addict and ordered that he be committed to the Director of Corrections for placement at the California Rehabilitation Center.

In a letter to the court dated February 24, 1965, the superintendent of the rehabilitation center, acting under the authority granted him by the Director of Corrections (Pen.Code § 5055), certified that defendant was not a fit subject for confinement or treatment at the rehabilitation center.   Upon receipt of this correspondence, the court, on February 26, 1965, dismissed its previous order of commitment and ordered defendant returned to court for further proceedings in the criminal case.   A supplemental probation report was ordered and, on APril 14, 1965, the court, after indicating that it had read this report, denied defendant probation and sentenced him to state prison for the term prescribed by law, the term being ordered to run concurrently with a term he was then serving.

Defendant contends that the trial court did not consider whether the superintendent acted within his discretion in finding he was not a proper subject for the rehabilitation program;  that, in fact, it was an abuse of discretion for the superintendent to deny treatment to defendant for the reasons given.

In the superintendent's letter to the court rejecting defendant, it is stated:

“Pursuant to the authority granted me by the Director of Corrections under the provisions of Penal Code Section 5055, I hereby certify that Ernest Ballin [defendant] is not a fit subject for confinement or treatment in the California Rehabilitation Center program, pursuant to the provisions of Penal Code Section 6453, because of his current sentence to State Prison.

“Our records reflect that Ballin was on regular felony parole from the California Department of Corrections at the time of his commitment to our program.   A diagnostic study was completed at the California Rehabilitation Center which evaluated his suitability for California Rehabilitation Center placement.

“On November 30, 1964, the case of Ballin was reviewed by the California Adult Authority.   At that hearing the Adult Authority did not see fit to release jurisdiction in this case in order to facilitate continuation in the California Rehabilitation Center program.   The order of the Adult Authority was:  Parole Revoked—Return to State Prison Ordered.

* * * * * *

“In view of the determination of the Adult Authority, Balling is being referred to the Court pursuant to the provision of Penal Code Section 6453 for further proceedings on the original criminal charges (Superior Court Case #### 289686).   It would appear that imposition of the sentence and commitment to the regular facilities of the Department of Corrections would best meet the needs in this case.”  [Emphasis added.]

As appears from the portion of the superintendent's letter above quoted, defendant was on parole for a previous offense when the court ordered him committed to the rehabilitation center;  this parole was subsequently revoked by the Adult AUthority (on November 30, 1964), while he was being evaluated at the center, and defendant was ordered returned to state prison;  it was for this sole reason that the superintendent certified defendant as not fit for treatment.

Section 6453 of the Penal Code (now Welf. & Inst. Code § 3053), provides:  “If at any time after 60 days following receipt of a person at the facility [rehabilitation center], the Director of Corrections concludes that the person, because of excessive criminality or for other relevant reason, is not a fit subject for confinement or treatment in such * * * rehabilitation facility, he shall return the person to the court in which the case originated for such further proceedings on the criminal charges as that court may deem warranted.”  [Emphasis added.]

On the basis of defendant's admissions that he had suffered four prior felony convictions, a rejection based on his excessive criminality would not have been unfounded.   However, the rejection was not placed upon this ground.

In People v. Rummel, 64 A.C. 541, 50 Cal.Rptr. 785, 413 P.2d 673, decided during the pendency of this appeal, the Supreme Court had before it the question of whether the fact that a defendant was on parole for an earlier offense and that such parole had been revoked, of itself justified a rejection by the Director of Corrections.   The court held that it did not.   However, the court also decided that the fact of a commitment to the rehabilitation center did not affect the power of the Adult Authority to revoke the parole for the earlier offense, saying (at p. 544, 50 Cal.Rptr. at p. 787, 413 P.2d at p. 675):

“The Adult Authority has ‘full power to suspend, cancel or revoke a parole without notice, and to order returned to prison any prisoner upon parole.  * * * ’ [Citations.]  This power is not limited by the statutory provisions governing commitment of persons addicted to the use of narcotics or who by reason of repeated use are in imminent danger of becoming addicted (now Welf. & Inst. Code, § 3000 et seq.).”

The case of In re Swearingen, 64 A.C. 545, 50 Cal.Rptr. 787, 413 P.2d 675 (Decided on the same date as People v. Rummel, supra), presented a situation in some respects similar to the instant case.   The defendant in In re Swearingen was, on May 11, 1965, ordered committed to the rehabilitation center by the superior court pursuant to section 6451, after defendant's plea of guilty to the charge of receiving stolen property.   He was then on parole for a previous offense.   On June 21, 1965, the Adult Authority revoked defendant's parole.   On July 19, 1965, the superintendent of the center certified to the court that defendant was not a fit subject for commitment.   The court directed that defendant be returned and lodged in the county jail pending further action on the criminal charge.   Defendant instituted habeas corpus proceedings before further criminal proceedings were taken.   While the Supreme Court indicated that the superintendent improperly rejected defendant at the rehabilitation center, because the facts showed no tests for addiction were given to defendant, and because the conclusion that he was not a fit subject was reached prior to the expiration of the 60–day period ad prescribed by section 6453, the court nevertheless denied defendant's petition for a writ of habeas corpus.   Following People v. Rummel, supra, the court in Swearingen concluded (at p. 548, 50 Cal.Rptr. at p. 790, 413 P.2d at p. 678):  “The order of commitment had no effect upon petitioner's parole status.   The power of the Adult Authority under Penal Code section 3060 to suspend or revoke a parole is not limited by the statutory provisions governing commitment of persons addicted to the use of narcotics or who by reason of repeated use are in imminent danger of becoming addicted (now Welf. & Inst. Code § 3000 et seq.).  [Citation.]

“Here the Adult Authority has revoked petitioner's parole.   Should the Adult Authority in the exercise of its discretion now restore petitioner on parole, he should be returned to the trial court for recommitment to the rehabilitation center, subject to the powers of the Director of Corrections under Welfare and Institutions Code section 3053.”  (64 A.C. 545, 548, 50 Cal.Rptr. 787, 413 P.2d 675.)

In the opinion originally filed in Rummel, the court had closed its statement as to the power of the Adult Authority, above quoted, by adding the same language relative to future proceedings in the second case, as that contained in the last paragraph of the Swearingen opinion just quoted.   Thereafter, however, the Supreme Court modified the Rummel opinion by deleting this language, but leaving the same language in Swearingen untouched.   We could only speculate as to the purpose for this distinction.   But we are faced with the proposition that, in the case closest to the facts of the case before us—i.e. Swearingen, where the defendant has been returned to the trial court which committed him on the basis of an invalid rejection, the Supreme Court has indicated that the commitment proceedings still retain some validity.

We are advised (by a footnote in Rummel ) that the Director of Corrections no longer follows a policy of automatic rejection because of parole status.   However, what position the Adult Authority will now take in the light of the Rummel and Swearingen decisions is not yet indicated.

 Analysis of the legal and the practical problems involved presents, in our view, this picture.   Under the statutory scheme set forth in the Narcotic Rehabilitation Act (now Welf. & INst. Code, § 3000 et seq.), the order of commitment to the rehabilitation center is made in a civil proceeding, instituted after the criminal proceeding has been suspended.   Unless, and until, the civil commitment and the proceeding from which it resulted have been lawfully terminated, it is improper to impose judgment in the criminal case.   Nowhere in the statute is the criminal court given any power, on its own motion or otherwise, to terminate these proceedings;  nor is the civil and committing court given any power to revoke a commitment once made.   It follows, that since defendant here was not validly rejected by the Director of Corrections (see Rummel, supra), he is still subject to the civil commitment initially made and consequently, the trial court had not jurisdiction to impose any sentence on him or to take any action whatsoever with regard to him, other than to direct that he be returned to the official having lawful custody.1  In this case, as Rummel and Swearingen indicate, the person who has lawful custody of defendant is the Director of Corrections acting under the order of the Adult Authority which has revoked his parole from his earlier criminal commitment.

We recognize that if the director should now, after appropriate testing for the statutory sixty-day period regard defendant as fit for the rehabilitation program, but the Adult Authority should not reinstate him on parole, a serious problem would be presented.   As we pointed out in People v. Corona, 238 A.C.A. 1037, 1046, 48 Cal.Rptr. 193, 198, “IF the narcotics commitment were to be served first, appellant would undergo treatment with the knowledge that he had a prison term (on the parole violation) awaiting him when he was released from the rehabilitation center.   If the prison sentence were to be served first, his entry into the rehabilitation center might be postponed for several years.; 2

The judgment is vacated;  the case is remanded to the superior court for further proceedings consistent with this opinion.


1.   IN People v. Strickland, 243 A.C.A. 197, 52 Cal.Rptr. 215, the trial court had suspended the criminal case and directed the institution of civil commitment proceedings.   During the course of those proceedings, it was disclosed that, because of the nature of Stickland's prior convictions, he was legally ineligible for the rehabilitation program (former Pen.Code, § 6452, now Welf. & Inst. Code § 3052).   Under those circumstances we concluded that the court had the power to reconsider and set aside its erroneous order suspending criminal proceedings.   The instant case presents nothing comparable.   Here the order suspending the criminal proceedings was neither inadvertent nor erroneous, and the court did not purport to reconsider and set it aside.

2.   It may be noted that the effect of the sentence herein imposed by the trial court gave defendant the benefit of concurrent terms of incarceration, which was the same result as that which would follow had the original order of commitment to the rehabilitation program been allowed to stand and had defendant's parole status not been revoked.   The procedure which we deem legally required will (unless the Adult Authority adopts a new policy) result in the rehabilitation term and the original criminal sentence being served consecutively.


FILES, P.J., and KINGSLEY, J., concur.

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