IN RE: Candice Kay GILMORE

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Court of Appeal, Second District, Division 3, California.

IN RE: Candice Kay GILMORE, an alleged narcotic drug addict, Appellant, v. The PEOPLE of the State of California, Respondent.

Cr. 27607.

Decided: April 29, 1976

Richard S. Buckley, Public Defender (Los Angeles County), John J. Gibbons, Alan H. Simon, Michael T. Tautfest and Laurence M. Sarnoff, Deputy Public Defenders, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for respondent.

Candice Kay Gilmore appeals from a judgment (order) committing her to the California Rehabilitation Center (hereinafter CRC). The appeal lies. (Pen.Code, § 1237, subd. (1).)

On March 6, 1975, appellant Gilmore was convicted of possession of heroin. (Health & Saf.Code, § 11350.) Further criminal proceedings were adjourned and an examination and hearing were ordered to determine whether appellant was addicted, or in imminent danger of becoming addicted, to narcotic drugs. (Welf. & Inst.Code, § 3051.) The trial court found appellant to be so addicted.

Appellant requested and received a jury trial to determine whether or not she was a narcotic addict. (Welf. & Inst.Code, § 3108.) Eleven of twelve jurors decided that appellant was a narcotic addict, and she was thereafter committed to CRC.

At her trial, appellant timely requested the court to instruct the jury that it must be convinced beyond a reasonable doubt that she was a narcotic addict and that any such finding must be unanimous. The trial court refused these requests. Instead, it instructed the jury according to the specific provisions of Welfare and Institutions Code section 3108 that the People must prove appellant's addict status by a preponderance of the evidence and that appellant could be found to be a narcotic addict by the votes of nine or more jurors.

Appellant claims, inter alia, that the above provisions of section 3108 violate constitutional guarantees of due process of law. (U.S.Const., 14th Amend., § 1; Cal.Const., art. I, § 7, subd. (a).) She argues that criminal law standards of proof beyond a reasonable doubt and a unanimous verdict are constitutionally required by the recent decisions of our Supreme Court in People v. Burnick, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, and People v. Feagley, 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373. We believe appellant's argument is sound and will therefore reverse the trial court's order committing her to CRC.

DISCUSSION

I. Prior Constitutional Challenges to Commitment of Narcotic Addicts

Civil commitment of narcotic addicts in this state commenced in 1961.1 (See Stats.1961, ch. 850, p. 2223, § 2.) Persons found by trial courts to be narcotic addicts and suitable for CRC commitment have the right to a jury trial under civil standards of preponderance of the evidence and a three-fourths majority verdict. (Welf. & Inst.Code, § 3108.) Civil rather than criminal standards have been increasingly emphasized by numerous amendments to the Welfare and Institutions Code in order to comply with the United States Supreme Court's decision in Robinson v. California (1962) 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758, 763, that mere addiction could not be the basis for criminal penalties. (See Belton, Civil Commitment of Narcotics Addicts in California: A Case History of Statutory Construction, 19 Hast.L.J. 603 (1968).)

The suggestion in Robinson that civil confinement and treatment of addicts would be constitutional was confirmed by the California Supreme Court in In re De La O, 59 Cal.2d 128, 28 Cal.Rptr. 489, 378 P.2d 793, cert. denied 374 U.S. 856, 83 S.Ct. 1927, 10 L.Ed.2d 1076. It was in this context that earlier decisions of this statewide court rejected constitutional challenges to both the three-fourths majority verdict and the preponderance of evidence provisions in section 3108. (See People v. Garcia, 256 Cal.App.2d 570, 576, 64 Cal.Rptr. 370, and People v. Valdez, 260 Cal.App.2d 895, 903–904, 67 Cal.Rptr. 583; but cf. People v. Moore, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 446 P.2d 800 (criminal law exclusionary rule does apply to CRC proceedings); People v. Malins, 24 Cal.App.3d 812, 820–821, 101 Cal.Rptr. 270 (criminal law standard for waiver of jury trial applicable to CRC commitment procedure); and People v. Bourdon, 10 Cal.App.3d 878, 881, 89 Cal.Rptr. 415 (as in criminal trials, suspected addict has right at any stage of commitment proceeding to raise issue of probable cause for underlying arrest).)

II. The Burnick and FEAGLEY Decisions

In 1975 our Supreme Court cast new suspicion on civil proceedings which in fact have consequences similar to those of criminal convictions. In People v. Burnick, supra, and People v. Feagley, supra, the high court found Welfare and Institutions Code section 6321 to be unconstitutional. That statute provided for civil trial standards in jury trials to determine whether persons are mentally disordered sex offenders (MDSOs). Although the MDSO statutes (Welf. & Inst.Code, §§ 6300, et seq.) are drafted in terms of ‘mental illness,’ the Supreme Court declared that the ‘civil label of convenience’ could not be determinative of a defendant's constitutional rights. (People v. Burnick, supra, 14 Cal.3d at 315, 121 Cal.Rptr. 488, 535 P.2d 352.)

Burnick and Feagley focussed instead on the practical result of such commitment proceedings as they affect the defendant's liberty and reputation. (People v. Burnick, supra, 14 Cal.3d at 318, 121 Cal.Rptr. 488, 535 P.2d 352 and People v. Feagley, supra, 14 Cal.3d at 347, 121 Cal.Rptr. 509, 535 P.2d 373; see also In re Winship (1970) 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368, 375, and In re Gault (1967) 387 U.S. 1, 49–50, 87 S.Ct. 1428, 18 L.Ed.2d 527, 558–559.) The court observed that a MDSO may be committed for an indefinite period up to life in a prison-like institution and will undoubtedly be ostracized from ordinary society—at least as much as is a convicted felon. (People v. Burnick, supra, 14 Cal.3d at 319–322, 121 Cal.Rptr. 488, 533 P.2d 352.) Therefore, the court concluded, the People should not be able to procure such an onerous judgment against an individual unless they meet the requirements of proof beyond a reasonable doubt and a unanimous jury verdict which the due process clauses of the U.S. and California constitutions impose on criminal proceedings.2 (People v. Burnick, supra, 14 Cal.3d at 310, 121 Cal.Rptr. 488, 533 P.2d 352 and People v. Feagley, supra, 14 Cal.3d at 349–350, 121 Cal.Rptr. 509, 535 P.2d 373.)

III. The Application of Burnick and Feagley to CRC Commitments

We must first consider whether there is sufficient similarity between MDSO and CRC commitment procedures to make Burnick and Feagley relevant. In our opinion the parallels between the two statutory schemes are strong. (See Note, 1 San Diego L.R. 58, 72–73 (1964).) As with a MDSO proceeding, a CRC commitment involves a new finding of fact on a matter not at issue in the criminal trial which may have preceded it. Both the CRC and MDSO programs deal with deviant behavior which has overtones of criminality and mental illness. Both purport to prescribe civil disposition of such persons, although a primary feature of the ‘treatment’ in both cases is compulsory institutionalization. Thus we have no doubt that the constitutional issues raised by Burnick and Feagley required a new and careful evaluation of section 3108.3

IV. Deprivation of Personal Freedom in CRC Commitments

In applying the constitutional analysis of Burnick and Feagley to CRC commitments, we begin by inquiring as to the effect of such commitment upon the addict's personal freedom. Admittedly, appellant's CRC commitment period as a narcotic addict could be at most ten years rather than the indefinite, possibly lifetime, commitment of a MDSO. (Compare Welf. & Inst.Code, § 3201 with id. §§ 6316 and 6326.) But we are persuaded that possible incarceration for ten years is more substantial a curtailment of personal freedom than occurs following many criminal convictions.4 CRC's ‘inpatient status' is closely equivalent to that of a prisoner, albeit in a less than maximum security penal institution.5 ‘Outpatient status' can be fairly equated with that of a parolee in the prison system.6

V. Stigmatization as a Result of CRC Commitments

Regarding Burnick's second inquiry, the effect upon status, we view the branding of a person as a narcotic addict to be a severe stigmatization. Until 1972, there were registration requirements for a narcotic addict just as there are currently for a MDSO.7 (Compare Health & Saf.Code, § 11850, repealed by Stats.1972, ch. 1407, p. 2987, § 2, with Penal Code, § 290.) Even without registration, the person found to be a narcotic addict will encounter great difficulties in securing employment and enjoying ordinary social status in the future.8 From two perspectives, the addict in our society is an outcast: he or she is both a criminal and a mental cripple.9 (See generally Aronowitz, Civil Commitment of Narcotic Addicts, 67 Col.L.R. 405 (1967).)

We do not think our decision requires from juries a level of certainty of which they are not capable. In Burnick, supra, 14 Cal.3d at 325, 121 Cal.Rptr. 488, 533 P.2d 352 the Attorney General argued that criminal standards of proof were inappropriate where a jury was dealing with expert medical opinions. In response to that objection, the high court pointed out the limits of certainty and consensus among psychiatric experts themselves. (Id. at 326–328, 121 Cal.Rptr. 488, 533 P.2d 352.) As regards drug addiction, the typical trial under section 3108 pits the defendant's claims of independence from drugs against the testimony of doctors whose observations of the suspected addict are usually confined to a physical examination of the person's limbs to determine the existence and age of tracks in his or her veins. (See, e. g., People v. Elmore, 272 Cal.App.2d 864, 868, 77 Cal.Rptr. 721.) We do not imagine that there will be many cases where it will be difficult for the jury to evaluate such expert testimony.

A person such as appellant, facing a lengthy inpatient and outpatient experience with CRC is constitutionally entitled not just to a modicum of due process but to a requirement that the jury be as certain of its decision as in any criminal case or MDSO commitment.10 (See Specht v. Patterson (1967) 386 U.S. 605, 609–610, 87 S.Ct. 1209, 18 L.Ed.2d 326, 330.) Therefore we conclude that section 3108 of the Welfare and Institutions Code is an unconstitutional denial of due process of law insofar as it does not require proof beyond a reasonable doubt and a unanimous jury verdict that a defendant is addicted, or in imminent danger of becoming addicted, to narcotic drugs.

VI. Retroactive Application of This Decision

Relying once again on the reasoning of the closely analogous Burnick opinion, we conclude that our holding that Welfare and Institutions Code section 3108 is unconstitutional must be given full retroactive effect. The Supreme Court in People v. Burnick declared that any decision whose major purpose is to correct a substantial impairment in the ‘truth-finding function’ must be made retroactive.11 (14 Cal.3d at 332, 121 Cal.Rptr. 488, 535 P.2d 352, quoting Ivan V. v. City of New York (1972) 407 U.S. 203, 205, 92 S.Ct. 1951, 32 L.Ed.2d 659, 660–661.) Obviously, the standard of proof and the degree of jury unanimity profoundly affect the reliability of a determination of whether a person is an addict.

In many cases, however, persons determined to be addicts under civil trial standards of proof may not choose to attack those proceedings. As discussed earlier, the bulk of evidence regarding addiction is derived from physical examination of the suspect. As the period of drug abstinance increases, it becomes more difficult to determine a past condition of addiction. Thus is many older commitment cases, the parties will be forced to resort to whatever documentary evidence remains. In particular, this may handicap cross-examination of expert witnesses. Furthermore, even if a new jury were to decide that the individual is not an addict, he or she will face resumption of the criminal proceedings from which most CRC commitments derive.

But the fact that retroactivity may not be an unmixed blessing for its possible recipients does not mean that we should not choose it. We believe that CRC patients, individually, presumably with the aid of counsel, should be free to decide whether they wish to avail themselves of it rather than our making an essentially arbitrary classification of eligibility for it.

We do not think that the retroactive application of our holding is in conflict with In re Bye, supra, 12 Cal.3d 96, 115 Cal.Rptr. 382, 524 P.2d 854. In Bye, the Supreme Court gave only prospective application to its decision that CRC outpatients returned to inpatient status must be given a post-recommitment, institutional hearing to determine whether the return was justified. (Id. at 111, 115 Cal.Rptr. 382, 524 P.2d 854.) In that case, the most important problem with retroactive application was its effect on the administration of the CRC program. Unlike requests for new trials on the question of addiction, there would be no deterrent whatsoever for any returned inpatients to attack their return (or returns). Additionally, because of CRC's encouragement of outpatient status, the number of addicts who could make such an attack would be enormous. In contrast, our holding affects only those persons who actually decide to relitigate the question of their addiction before a new jury.

Therefore, given the important purpose of our ruling and the limited effect it will have on the operation of the CRC program, our decision in the instant case must have full retroactive effect.

DISPOSITION

The judgment (order) committing appellant to the California Rehabilitation Center is reversed and the case is remanded for further proceedings consistent with the views expressed herein.

FOOTNOTES

1.  Ninety two percent of all commitment proceedings begin with the felony conviction of the suspected addict. (Characteristics of Civil Narcotic Addicts in CRC Institution Program, December 31, 1974, Administrative Information & Statistics Section, Research and Planning Services Policy and Planning Division, Department of Corrections (1975) (pamphlet).) Persons committed for treatment at CRC begin their extended relationship with the institution as an inpatient. Details of the inpatient program are given in footnote 5, infra. If the addict gains the approval of the CRC director and the Narcotic Addict Evaluation Authority, he or she may be placed on outpatient status during which time the addict must obey all outpatient rules. These usually include regular and surprise testing for the resumed use of narcotics. (See footnote 6, infra for other remarks regarding outpatient status.) (Welf. & Inst.Code, §§ 3150–3152.) Those persons who manage to remain independent of drugs for two consecutive years (or three years in a methadone maintenance program) may be discharged from CRC's jurisdiction. (Welf. & Inst.Code, § 3200.) But the majority resume using drugs one or more times. (Civil Narcotic Addicts Returned to CRC After Release, 1965 through 1974, Administrative Information & Statistics Section, Research and Planning Services Policy and Planning Division, Department of Corrections (1975) (pamphlet).) When this happens, the addict is returned to CRC as an inpatient, and the process begins anew. No person committed after a criminal conviction, however, may remain under CRC supervision for more than seven years (or, in special cases with court approval, ten years). (Welf. & Inst.Code, § 3201.)

2.  A subsidiary issue decided in the two cases was that a MDSO commitment was distinct in its consequences from the criminal conduct which may have triggered it. Therefore the use of criminal standards of proof in the criminal trial did not obviate the need for them in the subsequent commitment proceedings. (People v. Burnick, supra, 14 Cal.3d at 329–330, 121 Cal.Rptr. 488, 533 P.2d 352; People v. Feagley, supra, 14 Cal.3d at 356, 121 Cal.Rptr. 509, 535 P.2d 373; see also In re Arthur N., 16 Cal.3d 226, 240, 127 Cal.Rptr. 641, 545 P.2d 1345.)

3.  The Burnick opinion itself cast specific doubt on the continued constitutional validity of civil standards of proof in CRC commitment proceedings. (See People v. Burnick, supra, 14 Cal.3d at 331–332, fn. 21, 121 Cal.Rptr. 488, 533 P.2d 352; see also People v. Feagley, supra, 14 Cal.3d at 357, fn. 13, 121 Cal.Rptr. 509, 535 P.2d 373.)

4.  It is instructive to compare the actual length of CRC commitment with the solely judicial disposition of persons convicted for possession of opiates. In 1972, the most recent year for which complete statistics are available, the average length of inpatient stay at CRC for a first-time male admittee was seven months and an additional 36 months spent as an outpatient before discharge from the program.In 1972, 20% of the persons, like appellant, convicted for possession of opiates were sent to CRC. Of those who were not 27% received straight probation; 39% county jail time (less than one year) plus probation; only 12% were sent to state prison. (Crime and Delinquency in California, Bureau of Criminal Statistics (1972), p. 19, Table 12.) Thus commitment to CRC may mean a greater deprivation of freedom than simply judicial disposition of the case. (See also Rossbacher, Civil Commitment for Narcotics Addiction to the California Rehabilitation Center (Nat'l Institute on Drug Abuse Report, Grant No. DAO1146) at 38 (‘CRC is a sentencing alternative lying somewhere between commitment to the County Jail for six months to a year and a State prison term’).)Trial judges themselves often regard CRC commitment as the harsher penalty and try to avoid it in favor of granting probation so long as the defendant addict is enrolled in a community drug abuse program. (See 1 Drug Abuse Institute for Trial Court Judges 86 (1972) and 2 id. 14–17.)

5.  CRC inpatients spend their days in supervised therapy, work education and recreation periods. (See Wood, Preventive Law: The California Rehabilitation Center, 2 San Diego L.R. 54, 57–60 (1965).) Upon a felon's successful discharge from CRC and return to the trial court for imposition of sentence, the trial court must credit the defendant with the amount of time he spent as a CRC inpatient. (Welf. & Inst.Code, § 3200.) In fact, most trial courts dismiss the criminal charges after a successful completion and discharge from CRC. (See Beckett, Understanding Honored: Court Dispositions of Early, Drug Free Discharges from California Civil Addict Program, Report 113 (CAP Research Unit, Sept. 1974) at 5–6.)

6.  ‘Although the outpatient is not officially termed a parolee, procedures for continuing control and supervision are strikingly similar to California parole procedures.’ (Note, Control & Treatment of Narcotic Addicts: Civil Commitment in California, 6 San Diego L.R. 35, 45 (1969); see also 49 Ops.Atty.Gen. 9, 11 (1967).) Actually, the parolee enjoys somewhat greater procedural protection than the CRC outpatient when violations of rules are alleged. The former is ordinarily entitled to two judicial hearings in order to ensure that there are sufficient grounds to revoke his parole. (Morrissey v. Brewer (1972) 408 U.S. 471, 485–489, 92 S.Ct. 2593, 33 L.Ed.2d 484, 497–499.) The CRC outpatient may be returned to the institution ‘at the discretion of the [Narcotic Addict Evaluation] authority’ (Welf. & Inst.Code, § 3152), subject only to a single, nonjudicial hearing after recommitment has occurred. (See In re Bye, 12 Cal.3d 96, 106–107, 110, 115 Cal.Rptr. 382, 389, 524 P.2d 854, 861.)

7.  It is true that persons adjudicated as addicts and committed to CRC were exempt from registration. (Pen.Code, § 6510, repealed by Stats.1965, ch. 1226, p. 3062, § 1; Welf. & Inst.Code, § 3110.) But actual commitment to CRC does not automatically follow a finding of addiction. The individual must still be found and remain suitable for CRC treatment in the opinion of the Director. (Welf. & Inst.Code, § 3053.)

8.  See Note, Employment Discrimination Against Rehabilitated Drug Addicts, 49 N.Y.U.L.R. 67 (1974); and N. Kitter, The Right to be Different: Deviation and Enforcement Therapy 236 (1971). The dangers an addict poses to society have been described by our Legislature using a peculiarly perjorative term: ‘[CRC treatment] shall be carried out for nonpunitive purposes not only for the protection of the addict, or person in imminent danger of addiction, against himself, but also for the prevention of contamination of others and the protection of the public.’ (Welf. & Inst.Code, § 3000.) (Emphasis added.)

9.  Even a former heroin addict, who now operates a successful rehabilitation program in San Fransico, has no kind words for addicts: ‘The only way to help these bums is to recognize they're not poets in disguise. Most addicts I know are highly dependent personalities with the IQs of salamanders. This is obvious to anybody who's been in the business. To me, the addicts are a rather boring sub-group of humanity who have received far more attention than they deserve. They're the last on my list to cry about. I'd rather see our society start worrying more about crippled children, or our senior citizens who have to eat dog food to stay alive.’ (Remarks of John Mahar, quoted in L.A. Times, Apr. 11, 1976, part V, p. 1.) (Italics deleted.)

10.  Under the Lanterman-Petris-Short Act, a unanimous jury verdict is explicitly required before a mentally ill person who is dangerous to others may be committed to a state hospital. (Welf. & Inst.Code, §§ 5300–5303.) Although the Attorney General finds a significant distinction between CRC and mental hospital commitment because of the latter's dangerousness requirement, our Supreme Court in Burnick strongly suggested that the higher standards of proof beyond a reasonable doubt and a unanimous jury verdict might be judicially imposed in all cases of commitment for mental illness. (See People v. Burnick, supra, 14 Cal.3d at 314, fn. 5, 121 Cal.Rptr. 488, 535 P.2d 352.) In any event, the Legislature's pronouncements regarding the danger an addict poses to his community (see fn. 8, supra) would make CRC commitment more similar to a section 5300 commitment than to commitment for non-dangerous mental illness.

11.  Having declared the ‘truth-finding’ purpose in its decision, the Court in Burnick did not discuss the remaining two traditional concerns regarding retroactivity: past reliance upon the displaced rule and the effect of retroactivity upon the administration of justice. (Cf. Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1203.) This was because these other factors are to be relied upon only when the purpose of the decision does not clearly favor either retroactivity or prospectivity. (See Desist v. United States (1969) 394 U.S. 244, 251, 89 S.Ct. 1030, 22 L.Ed.2d 248, 256, and People v. McAlister, 54 Cal.App.3d 918, 925, 126 Cal.Rptr. 881.) Although our decision shares Burnick's purpose, we will also discuss the practical effect of our holding on the CRC program.

COBEY, Acting Presiding Justice.

ALLPORT and POTTER, JJ., concur.