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

PEOPLE of the State of California, Plaintiff and Respondent, v. Guadalupe ROCKINS, Defendant and Appellant.


Decided: May 22, 1984

Philip Pennypacker, San Jose, Carlo Andreani, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gloria F. DeHart, Kristofer Jorstad, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant, a former patient-inmate of the California Rehabilitation Center (CRC) whose commitment was subsequently revoked, contends that:  (1) the exclusion procedure utilized did not comply with the due process clause of the state Constitution as interpreted by People v. Ramirez (1979) 25 Cal.3d 260, 276–277, 158 Cal.Rptr. 316, 599 P.2d 622;  (2) the trial court abused its discretion by basing its decision on her failure to call one witness and cross-examine another, and by concluding that it lacked jurisdiction to “second guess” the exclusion decision made by the Superintendent of CRC (Superintendent);  and (3) in any event, remand for resentencing is required as the trial court failed to consider the mitigating circumstances.   For the reasons set forth below, we affirm.

In June 1981, appellant was found guilty by a jury of possession of heroin for sale 1 (Health & Saf. Code, § 11351).   Pursuant to Welfare and Institutions Code section 3051, the trial court suspended criminal proceedings and found that appellant was a narcotics addict within the meaning of that statute.   On September 2, 1981, the court imposed an aggravated term of four years in state prison, but suspended sentence and committed appellant to CRC.

Pursuant to Welfare and Institutions Code section 3053,2 by a letter dated March 15, 1982, the Superintendent informed the court that appellant had been excluded from CRC as unfit for treatment.   After hearings on May 5 and 12, 1982, the court sustained the exclusion and imposed the previous four-year prison sentence with credit for time served.   This appeal ensued.

 In People v. Ramirez, supra, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622, our Supreme Court outlined the “flexible” procedural due process afforded by the California Constitution (Cal. Const., art. I, § 7, subd. (a);  id., § 15) to patient-inmates of CRC who are returned to the committing court as unfit for treatment, as follows:  “For the foregoing reasons, we conclude that the due process clause entitles the patient-inmate to an opportunity to respond to the grounds for the exclusion prior to the final exclusion decision.   To make such an opportunity meaningful, the patient-inmate must be given a statement of those grounds, access to the information that the Director [of Corrections] considered in reaching his decision (fn. omitted), and notice of the right to respond.   He also must be permitted to exercise his right to respond orally before a responsible official if he so chooses.”  (Ramirez, at p. 275, 158 Cal.Rptr. 316, 599 P.2d 622, emphasis added.)   In addition, the patient must receive a written copy of the final decision with reasons;  this requirement is not in issue here.  (Ramirez, at p. 275, 158 Cal.Rptr. 316, 599 P.2d 622.)

We review the record with the following considerations in mind.   First, was appellant informed of the reasons for the proposed exclusion?   Second, did the Superintendent base his decision on legally sufficient reasons, i.e., not on erroneous or irrelevant facts?   Third, and the major one in dispute here, was appellant afforded an opportunity to respond orally before “a responsible official?”  (See People v. Ramirez, supra, 25 Cal.3d 260, 275, 158 Cal.Rptr. 316, 599 P.2d 622.)   If the answer to this threefold inquiry is in the affirmative, then Ramirez instructs that the instant denial of appellant's liberty interest was accomplished with due process.

 Appellant's liberty interest included receiving treatment at CRC for her narcotics addiction as a patient-inmate.  (Ramirez, at p. 272, 158 Cal.Rptr. 316, 599 P.2d 622.)   Appellant's heroin addiction was clearly established.   At the hearing, the trial court considered several documents, including the “Initial Study” and a “Closing Summary” transmitted to the court, together with the Superintendent's exclusion letter of March 15, 1982.3  Both of these documents were prepared by Correctional Counselor Shepard.   The “Initial Study” so far as pertinent stated:  “Guadalupe's involvement with drugs began at the age of 22 when she began using heroin out of curiosity and developed a habit averaging $200.00 per day which lasted for eight years.   Prior to coming to CRC, she was using approximately $50.00 a day.   Guadalupe has experimented with other drugs within the past eight years, including cocaine, barbituartes, amphetamines, and marijuana on an infrequent basis.”   The report of the court's adult probation officer revealed that appellant reported that “at the time of her arrest, she was ‘strung out’ on heroin, using an estimated two ‘spoons' three to four times per day.   She estimated she had been using at that level for approximately three months.

The Superintendent, however, viewed appellant as unsuitable for the Civil Addict Program “because of involvement in sales of narcotics at a level and with a criminal sophistication exceeding that of the common street addict.”   (Emphasis added.)   The Superintendent agreed with the recommendation of the correctional counselor (Ms. Shepard).   Ms. Shepard's recommendation was based on two CRC reports, prepared by Paul Feinstein, CRC's parole agent.   Feinstein performed an initial field study and responded to specific requests for information on appellant's sales activities and potential violence.   Feinstein based his conclusions on appellant's probation report, rap sheets and interviews with arresting officers.4  The first report was discussed with the appellant, who indicated that there were errors as to her January 1981 arrest for shoplifting.   Feinstein also prepared a second report which clarified that the 1981 arrest was not for shoplifting and that the weapon involved belonged to a codefendant and not the appellant.   Feinstein did not contact the appellant or her attorney as his primary role was to check out CRC's concerns and he had not been instructed to consider appellant's performance or her potential for rehabilitation.   Feinstein recommended appellant's exclusion.

 The record supports the finding that appellant was duly notified and informed of the reasons for the proposed exclusion.   Appellant testified that she never received a copy of the Superintendent's March 15 exclusion letter but admitted that she received a letter telling her that she had been excluded, as well as a copy of the “Initial Study” and the “Closing Summary.”   The latter (quoted at fn. 4 on p. 679) clearly informed appellant of the recommendation to exclude and the reasons.

The record indicates that appellant also was aware from the time of her reception at CRC that she would undergo a suitability investigation.   She was interviewed by CRC staff personnel during the course of the initial study.   Further, she attempted to appeal;  she “filled out a green sheet of paper,” which she “handed to L. White's secretary.”   At the “same time,” appellant requested to “talk” to the Superintendent, and Mr. Villalovos, whose position and title she did not know.

 Nor does it appear that CRC's decision to exclude appellant was based in part on erroneous information.   While appellant testified that she had never been incarcerated in the Los Angeles County jail,5 substantial evidence supports the trial court's implied finding that the disposition of appellant's initial arrest at age 18 did not weigh heavily in the Superintendent's instant decision to exclude her from its rehabilitation program.   The fact that almost half of the narcotics found were in purses containing appellant's identification supported the conclusion that she was a dealer.   Further, as noted above, the other factual errors were corrected in Feinstein's second report.

Thus the record indicates that appellant was informed of the nature and reasons for her exclusion and that the Superintendent based his conclusion on legally sufficient reasons.   Accordingly, the first two due process requirements of Ramirez were met.

The instant case focuses on the third, namely, whether appellant was permitted to exercise her right to respond orally before “a responsible official.”   We agree with the People that the correctional counselor, who upon investigation recommended “exclusion,” is “a responsible official,” as contemplated by Ramirez.

The dissent maintains that the “responsible official” required by Ramirez is “the Superintendent or his designated alter ego.”  (Dis. opn., p. 683)  The dissent relies on the language of People v. Ramirez, supra, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622, quoted above at page 3 of this opinion.   In examining that language it is interesting to note that when the Supreme Court meant the Director of CRC it used the word “Director” but when the court focused on the patient-inmate's right to respond, it spoke of the “right to respond orally before a responsible official.” 6  (People v. Ramirez, supra, at p. 275, 158 Cal.Rptr. 316, 599 P.2d 622, emphasis added.)   The Supreme Court did not explain but referred to the Director to whom the statute delegates the authority to exclude persons from CRC.  (See fn. 2 on p. 678 above.)   In footnote 6 at page 276, 158 Cal.Rptr. 316, 599 P.2d 622, the Supreme Court again preserved this distinction by stating:  “In cases in which disputes over specific matters are relevant to the exclusion decision, however, the official responsible for hearing the patient-inmate's case may in his discretion allow the patient-inmate to confront and cross-examine witnesses in the interest of fostering a more accurate decision.”   The dissent then states that “[m]anifestly, the responsible official contemplated by Ramirez is the official who makes the final exclusion decision, ․”  (Dis. opn. at p. 683, emphasis added.)

Ramirez spoke of “a” responsible official.   The dissent converts that into “the” responsible official because otherwise “the patient-inmate's right to appeal is essentially meaningless as this case illustrates.”  (Dis. opn. at p. 683.)   The dissent's reasoning eludes us.  Ramirez speaks of “a right to respond,” not a “right to appeal.” 7  Nor do we understand why this case illustrates that a right to orally respond to the CRC correctional counselor's report before the report goes forward is “essentially meaningless.”   Is it because the counselor did not change the recommendation?   If so, it could be argued that an appeal to the CRC superintendent may be equally “meaningless” where he does not accede to the desire of the inmate.

In Ramirez, the court emphasized that the purpose of the right to orally respond was to the dignity interest and because such an opportunity “may be useful in resolving conflicting information and in the introduction of subjective factors into the decision-making process that might not otherwise be considered;  ․”  (People v. Ramirez, supra, 25 Cal.3d at p. 275, 158 Cal.Rptr. 316, 599 P.2d 622.)

In the instant case, appellant was given notice of the grounds upon which a recommendation for exclusion from CRC would be made.   Before the report and recommendation of the CRC correctional counselor went to the Superintendent appellant had an opportunity and did, in fact, meet with that correction counselor to orally respond to the report and recommendation.   Admittedly, as a result of that meeting certain errors in the report were corrected and a second report was prepared.   In addition, the report included appellant's statement as to why she believed she could benefit from the CRC program.

 Thus, appellant's opportunity served the purposes of giving appellant an opportunity to respond, of resolving conflicting information and providing for the inclusion of subjective factors that otherwise might not be considered.   That appellant was not successful in her effort to be retained in the CRC program is not a measure of whether she was accorded the procedural safeguards of due process prescribed by Ramirez.

 In short, we are of the view that the opportunity of an inmate to meet with the CRC correctional counselor who is preparing the report and recommendation as to exclusion for the deciding authority and discuss the alleged grounds for exclusion satisfies the third Ramirez requirement, to wit, “the right to respond orally before a responsible official.”

 Appellant next contends that the trial court abused its discretion.   She focuses on the trial court's statements about:  (1) her failure to call one witness and cross-examine another and (2) its inability to “second guess” the subjective decision of the Superintendent.   Both comments, when read in context,8 demonstrate that the trial court properly understood and exercised its function under Ramirez.   The statement read in its entirety establishes that the court viewed appellant's failure to call the liasion officer and to cross-examine the parole unit officer as some of many factors.

Appellant ignores her burden of proof and misreads the rejection in Ramirez, supra, at pages 275–276, 158 Cal.Rptr. 316, 599 P.2d 622 of confrontation, cross-examination and other formal hearing rights as follows:  “As previously discussed, the Director's decision is evaluative in nature and based on his specialized subjective judgment;  that judgment depends on consideration of a host of intangible factors rather than on the existence of particular and contestable facts.   As a result, more formal procedures than those previously identified would not reduce the likelihood of an erroneous determination, unless the individual challenging the decision could confront and cross-examine all the experts and persons who contributed information to his case history and to his psychiatric reports and criminal record.   Even then, the marginal value to the individual would seem to be relatively insignificant because of the difficulties inherent in challenging the subjective aspects of an evaluative-type decision.   Moreover such extensive procedures would substantially impair administrative efficiency.   Consequently, we do not believe they are needed to protect the interests of the excluded CRC patient-inmate.  (Cf. People v. Arbuckle (1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 587 P.2d 220] ․)”  (Emphasis added.)

 The trial court properly concluded that because of the evaluative nature of the Superintendent's decision it could not “second guess” his expertise.   As reiterated in Ramirez, supra, whether or not any given defendant can be treated with success is a fact which must be determined not by judges but by those trained and engaged in the treatment process.

We recognize that the authorities disagree as to the factors which may be considered by the trial court.   Some courts adhere strictly to the language of Welfare and Institutions Code section 3051 and hold that the only factor to be considered is excessive criminality, with all others left to the CRC experts.9  (People v. Madden (1979) 98 Cal.App.3d 249, 261–262, 159 Cal.Rptr. 381.)   This district, however, has followed the view that a trial judge may consider all of the exclusionary criteria used by CRC.  (People v. Harris (1971) 17 Cal.App.3d 388, 399, 95 Cal.Rptr. 80, disapproved on another point in People v. Navarro (1972) 7 Cal.3d 248, 264, 102 Cal.Rptr. 137, 497 P.2d 481.)

 Finally, appellant contends that the judgment must be reversed in any event, because the court failed to consider mitigating factors such as her attempts to rehabilitate herself, her age and her children.   The record, however, indicates that the court considered the factors in aggravation, including the sophistication and planning involved in the selling offense as well as the quantity and location of the contraband involved.  People v. Romero (1977) 68 Cal.App.3d 543, 549, 137 Cal.Rptr. 675, cited by appellant, is inapposite as there the quantity was very small.   Here, although appellant was charged only with possession in excess of one-half ounce, the quantity was substantial.   The record further indicates that the court viewed the presence of children at the time of the offense as an aggravating factor.   We conclude that the record reveals that the court properly considered all of the factors and no remand is required.  (People v. Burg (1981) 120 Cal.App.3d 304, 306, 174 Cal.Rptr. 491;  cf. People v. White (1981) 117 Cal.App.3d 270, 280, 172 Cal.Rptr. 612.)

The judgment is affirmed.

I respectfully dissent.   I do not think appellant's opportunity to correct the admittedly erroneous record and provide her own inputs to a correctional counselor 1 constituted a meaningful opportunity to respond orally before a responsible official prior to the final exclusion decision.   Contrary to the majority view, I was not making merely semantic distinctions between “a” responsible official and “the” responsible official.   The majority ignores the important dignitary interest 2 of the individual served by enabling a person to present her side of the story before a responsible government official.   It is clear that the Supreme Court knew that the Director had delegated his authority to the Superintendent (Ramirez, supra, 25 Cal.3d at p. 271, 158 Cal.Rptr. 316, 599 P.2d 622), hence the distinction in terminology.   Manifestly, the responsible official contemplated by Ramirez is the official who makes the final exclusion decision, i.e., the Superintendent or his designated alter ego.   Otherwise, the patient-inmate's right to appeal is essentially meaningless as this case illustrates.   The majority appear to concede that the correctional counselor to whom appellant orally responded only had the power to make a recommendation, not the final exclusion decision.

Ramirez establishes that appellant was entitled to react meaningfully to the decision to exclude her, i.e., to a responsible official “to register concern, dissatisfaction, and even frustration and despair.”  (Id., at p. 275, 158 Cal.Rptr. 316, 599 P.2d 622.)   On the instant record, appellant was denied that opportunity.   One day she “came home from work” 3 only to learn that she was being excluded.   She was told “to get my things ready because I was coming back.”   Thereafter her request to sit down with either the Superintendent or his designee to tell them she wanted to stay was thwarted and ignored.   The majority views appellant's contention that she was not permitted to talk to “higher ups” as “merely complaining.”   The People argue that she waived her right to appeal to the Superintendent.   The Superintendent's letter of March 15, 1982 stated that her appeal rights had been explained to her but the record indicates that appellant filed the green (appeal) paper and never got an answer.

Conveniently, the majority overlooks that Ramirez, supra, at page 275, 158 Cal.Rptr. 316, 599 P.2d 622, requires a meaningful opportunity to respond “prior to the final exclusion decision.”  (Emphasis added.)   Appellant here was presented with a fait accompli.   She did not have the opportunity to present her side of the story before the final decision to a person who was the “responsible” official rather than a correctional counselor charged only with making a recommendation.

I am aware that Ramirez also instructs that we must weigh personal and governmental interests at stake, i.e., “(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”  (People v. Ramirez, supra, at p. 269, 158 Cal.Rptr. 316, 599 P.2d 622.)   The cost of review caused by the procedure is a factor.  (Cf. In re Head (1983) 147 Cal.App.3d 1125, 1133, 195 Cal.Rptr. 593.)   Allowing a patient-inmate to present her case to the Superintendent or his designee would not add greatly to the expense.   In addition, giving greater procedural protections to patient-inmates would further the governmental interest of selecting the most appropriate candidates for the CRC program.   The entire CRC program is predicated on helping addicts become useful members of the society.   There is a governmental interest in reducing prison over-crowding and in preventing the separation of family members from young children who may otherwise have to become wards of the state.   Appellant's performance in the CRC program apparently was not considered.

I would reverse and remand for a rehearing.   If the proof at rehearing, however, continues to demonstrate that appellant was denied by CRC's procedures her right of oral presentation to an official who has responsibility for the final decision about her amenability, the Superintendent will be required to reconsider his decision.   In that event it may be that after oral presentation, appellant may still be excluded as unamenable to CRC's treatment program.4  But then, at least procedural due process will have been served.  (See People v. Ramirez, supra, 25 Cal.3d 260, 275, 158 Cal.Rptr. 316, 599 P.2d 622.)


1.   The charges arose from the August 21, 1980 execution of a search warrant at 581 Avalani Avenue, Apartment 2, San Jose, where the officers found appellant, a male codefendant and 21 balloons containing 20.6 grams of heroin valued at $1,200.

2.   Welfare and Institutions Code section 3053, subdivision (a) lodges the authority to exclude from CRC in the Director of Corrections.   In the instant case, the Superintendent made the decision to exclude appellant.   We infer, therefore, that the Director of Corrections delegates the requisite authority to the Superintendent.

3.   While the record does not reflect that these documents were formally admitted into evidence, appellant's counsel referred to them in her examination and presentation of appellant's testimony at the exclusion hearing.   The People augmented the record on appeal to include the Superintendent's letter and CRC reports.  Ramirez, supra, at page 274, 158 Cal.Rptr. 316, 599 P.2d 622, instructs that the trial court may rely upon the record and information furnished by the Director of CRC in addition to other pertinent evidence.  (See People v. Montgomery (1967) 255 Cal.App.2d 127, 131, 62 Cal.Rptr. 895, cert. den. 390 U.S. 1034, 88 S.Ct. 1430, 20 L.Ed.2d 292.)

4.   In relevant part, Ms. Shepard's recommendation read as follows:  “When arrested at the apartment she shared with a codefendant, 21 balloons containing 20.6 grams of heroin and worth $1,200.00 were found.   Ten of the balloons were found in purses containing Ms. Rockins' identification.   Although this is Ms. Rockins first major incarceration, her record extends to September, 1970 and ranges from a traffic warrant, at that time, to Theft, Possession of Heroin and Possession of Paraphernalia, Resisting Arrest, Removing Mortgaged Property, Carrying a Concealed Weapon and Carrying a Loaded Firearm in 1976, a charge of Possession of Narcotics Controlled Substance for sale in 1980, an additional charge of Possession of Controlled Substance and Carrying a Concealed Weapon, Loaded Firearm in the vehicle to the instant offense of Possession of Controlled Substance for Sale.   Because of her extensive criminal history and the possession of a firearm, Guadalupe Rockins is deemed nonamenable to the Civil Addict Program and it is recommended that she be excluded therefrom.”  (Emphasis added.)

5.   Apparently, appellant did not detect this error in the case summary during the investigation.

6.   The dissent is studded with references to the “Director.”   It seems clear that when the Ramirez court meant the Director, the court said so.

7.   Appellant's argument is erroneously phrased as a denial of her right to appeal the Superintendent's decision.

8.   “The Court:  Further, I would observe for the record that the defendant has the burden of proof in this proceeding, and that I note that they did not call the CRC liaison officer as a witness, who could have testified to exactly what procedures were employed in this case.   The court on its own motion requested the appearance of the local parole unit officer, whose reports are referred to, and he was called as a witness and brought his reports into court.   He was not cross-examined on those, on the substance of those reports, but only on procedures for submitting those reports.“This is evidence I consider potentially to have been of benefit to the defense and which the defense I think must be charged with having intentionally passed up.“I am satisfied from my participation in the trial and from my careful review of the authorities, including the Ramirez case, that the defendant has failed to meet the burden of showing on the only issue that is before me at this time, which is whether or not the Superintendent of the CRC facility in Corona made a determination that was based on factually inaccurate data.“This court has no power to second-guess the subjective decision of the Superintendent in his conclusion that the defendant is unsuitable by reason of her excessive dealing of drugs and past possession of weapons.”   (Emphasis added.)

9.   So far as here pertinent, Welfare and Institutions Code section 3053, subdivision (a) states that the Director's determination of fitness for CRC treatment may be based on “excessive criminality” or “other relevant reason, ․”  (Emphasis added.)

1.   Although the record does not clearly so indicate, we assume that it was the correctional counselor who discussed Feinstein's first report with the appellant.

2.   The recognition of this dignitary interest led our Supreme Court in People v. Ramirez 25 Cal.3d 260, 267, 158 Cal.Rptr. 316, 599 P.2d 622, to conclude that the federal due process standards were not sufficient under the due process clause of our state Constitution.  (See Note, People v. Ramirez:  A New Liberty Interest Expands Due Process Protections (1981) 69 Cal.L.Rev. 1073, 1075, 1084, 1090–1093.)

3.   In the CRC's program appellant's “work” was in the kitchen detail, a task she performed so well she received a “raise” in pay.

4.   “Amenability,” of course, is an “evaluative” decision requiring of the Superintendent “specialized subjective judgment,” taking into account a “host of intangible factors” not limited to appellant's liberty and treatment interests but including CRC's interest in providing a secure and beneficial narcotic addict rehabilitation program.

BARRY–DEAL, Associate Justice.

SCOTT, J., concurs.