PEOPLE v. McEVER (1994)

OPINION

STATEMENT OF THE CASE

On December 16, 1991, appellant Virgil L. McEver pled guilty to a violation of Health and Safety Code section 11360, subdivision (a) (transportation or sale of marijuana).   Appellant's plea was conditioned upon dismissal of an additional count charging a violation of Health and Safety Code section 11379 (transportation or sale of methamphetamine) and two prior prison term allegations, and additionally that he be considered for treatment at the California Rehabilitation Center (CRC).

On January 13, 1992, the trial court denied probation, imposed the four-year aggravated prison term, and ordered restitution fines and penalties.   The trial court, however, suspended criminal proceedings pursuant to Welfare and Institutions Code section 3051 and committed appellant to CRC.   After serving 172 days at CRC (Jan. 23, 1992 to July 12, 1992), appellant was deemed ineligible for treatment due to excessive criminality.   On July 31, 1992, the court upheld appellant's exclusion from CRC.   At the second sentencing hearing on September 18, 1992, appellant's previous four-year term was executed.

On November 2, 1992, appellant filed a motion, inter alia, challenging the computation of conduct and worktime credits attributable to his time at CRC.   The motion was denied on November 5, 1992.   Appellant filed a timely notice of appeal on November 18, 1992.

The only issues presented on appeal concern the custody credits to which appellant was entitled for the time he spent at CRC.

FACTS

The facts pertaining to the underlying offense are not pertinent to the issues presented on appeal.   Suffice it to say that on July 18, 1991, appellant sold a police informant 1.9 grams of marijuana for $40.

After having been committed, appellant served 172 days at CRC before being excluded for excessive criminality.   At the second sentencing hearing on September 18, 1992, appellant was awarded a total of 462 days credit composed of 308 days actual time and 154 days of conduct credit, 86 days of which were attributable to time served at CRC.¹  No worktime credits were awarded for the time spent at CRC.

Appellant's sole contention on appeal is that he is entitled to worktime credits for his stay at CRC as a matter of equal protection.   The People counter that appellant is not entitled to work credits for his stay at CRC and further contend that the trial court erred in awarding appellant conduct credits for his time at CRC.

DISCUSSION

I.WORKTIME CREDITS

Appellant argues that he is entitled to an award of worktime credits for the time he spent at CRC because the denial of such award constitutes a violation of his equal protection rights.   Appellant acknowledges that this court, relying on In re Mabie (1984) 159 Cal.App.3d 301, 205 Cal.Rptr. 528, has previously held that a CRC committee is not entitled to worktime credits and that the disparate treatment is justified based upon the rehabilitation and treatment purpose of a CRC commitment.  (People v. Miller (1991) 233 Cal.App.3d 1551, 1554–1555, 285 Cal.Rptr. 410.)   Appellant admits that the reduction of treatment time to a CRC commitment might reduce the effectiveness of therapy.   He admits that the state “unquestionably has a compelling interest in providing adequate therapy for drug rehabilitation.”   He contends, however, that “this compelling state interest dissipates when the state terminates therapy for a [CRC] committee on the basis of excessive criminality.”

Once therapy has terminated, according to appellant, retroactive application of worktime credits cannot possibly impact the therapeutic process.   Appellant is simply revisiting the identical issues resolved by this court in People v. Miller, supra, 233 Cal.App.3d 1551, 285 Cal.Rptr. 410.

In Miller, our court dealt with the issue of a criminal defendant committed to CRC who was excluded from CRC for excessive criminality.   Because the defendant in Miller had been excluded from CRC he argued that he was entitled to worktime credits for the time he spent at CRC.   The basis of his argument was equal protection.   This court relied on the earlier case of In re Mabie, supra, 159 Cal.App.3d 301, 205 Cal.Rptr. 528.   We acknowledged in Miller that the Mabie court assumed that CRC addicts and state prisoners who were sentenced for the same underlying offense were similarly situated.   We nevertheless held that the underlying rehabilitative basis for commitment to CRC was vastly different from the need to punish through a state prison sentence.   Rather than reinventing the wheel, we quote from our Miller opinion as follows:

“Appellant contends that he is a person convicted of a crime and sentenced to state prison and thus by the terms of section 2933 is entitled to worktime credits.   However, we have concluded that the Legislature's omission from section 2933 of any mention of CRC committees suggests it did not intend to provide worktime credit for such individuals.

“In re Mabie (1984) 159 Cal.App.3d 301 [205 Cal.Rptr. 528], a case wherein the appellant was not excluded from CRC, held a committee was not entitled to worktime credits.   The court grounded its decision upon statutory construction and held that a denial of worktime credits did not deny the committee equal protection of the law.

“․

“In rejecting a claim that the denial of worktime credits to CRC committees amounted to a denial of equal protection of the laws, the Mabie court assumed ‘that CRC addicts and state prisoners sentenced for the same underlying offense are similarly situated’ (159 Cal.App.3d at p. 307, 205 Cal.Rptr. 528) and held the state had compelling justification for the disparate treatment of the two classifications.   We will follow the persuasive reasoning of the Mabie court.

“The ‘purpose of imprisonment for crime is punishment’ (§ 1170, subd. (a)(1);  In re Jiminez (1985) 166 Cal.App.3d 686, 692 [212 Cal.Rptr. 550] ).   In comparison, the rehabilitation and treatment of addicted individuals is the central purpose of a CRC commitment.

“In holding that there was no denial of equal protection, the Mabie court stated:

“ ‘[W]e find a compelling justification for limiting section 2933 worktime credits to state prison inmates.   The intent of the Legislature in enacting section 2933 is embodied in part in the Statutes of 1982, chapter 1, section 1:  “It is the intent of the Legislature that all able-bodied prisoners in the state prisons be directed to work, inasmuch as the performance of productive work on a regular basis is the most appropriate method of successfully instilling in prisoners the values of a law-abiding and cooperative society and will improve the possibility of their reintegration into that society.”   (Stats.1982, ch. 1, § 1, No. 2 Deering's Adv. Legis. Service, pp. 1–2, No. 1 West's Cal. Legis. Service, p. 67.)   Moreover, section 2933 credits, unlike good behavior and participation credits under section 2931 must be earned by state prison inmates who work in a credit qualifying assignment.   Such credit is not automatically granted.  [Citations.]

“ ‘The legislative purpose of instilling the work ethic in state prison inmates has little, if any, applicability to the CRC committee.  “Petitioner is in the CRC program because of his narcotics addiction and its result not only to him but to the rest of society.   He is there because of a physical and psychological addiction.   Narcotics addiction and crime go hand in hand.   Addiction breeds crime.   Petitioner needs and society demands particularized treatment of him because of that condition.”  [Citation.]  Such treatment provides the most likely prospect for petitioner's successful reentry into society.   The compelling state interest is manifest by the importance of treatment for a narcotics addict.   Theoretically, successful treatment would obviate the need for an addict to commit crime to support his habit.   Since addiction is the root of the problem, the Legislature apparently determined that worktime credit would not foster effective treatment.   This determination forms the basis of the necessary compelling state interest.’  (In re Mabie, supra, 159 Cal.App.3d at p. 308, 205 Cal.Rptr. 528.)

“Appellant attempts to distinguish the holding in Mabie from his situation because appellant was excluded from CRC (Welf. & Inst.Code, § 3053).   The attempted distinction is without merit.   Essentially, the distinction raises a question of whether the length of time actually served at CRC has any bearing on the above equal protection analysis as between a CRC committee and a state prisoner sentenced for the same offense.   We see none.   The factual distinction is without legal significance.   Whatever the length of time actually served at CRC, the distinction between punishment for a crime and treatment and rehabilitation for narcotics addiction is valid and justifies the denial of worktime credits to appellant.   Accordingly, appellant's attempted distinction must fail.”  (People v. Miller, supra, 233 Cal.App.3d at pp. 1554–1556, 285 Cal.Rptr. 410.)

Preceding Miller by one month is People v. Williams (1991) 232 Cal.App.3d 1643, 284 Cal.Rptr. 241.   There, a criminal defendant committed to CRC asserted that denial of worktime credits violated Penal Code section 2933 and equal protection principles.   The Williams court rejected both these contentions.  (232 Cal.App.3d at p. 1645, 284 Cal.Rptr. 241.)   Like our Miller case, the Williams case followed the Mabie decision.   (232 Cal.App.3d at p. 1647, 284 Cal.Rptr. 241.)   The Williams court noted that the purpose of imprisonment for crime was punishment and that the central purpose of a CRC commitment was rehabilitation and treatment of addicted individuals.  (232 Cal.App.3d at p. 1648, 284 Cal.Rptr. 241.)

The Williams court further noted that “while the state has a strong interest in motivating prison inmates to work and instilling in them a healthy work ethic, treatment provides the most likely prospect for an addict's successful reintroduction to society.”  (232 Cal.App.3d at p. 1648, 284 Cal.Rptr. 241, fn. omitted.)   The Williams court held that the distinction between CRC committees and state prison inmates for one-to-one worktime credits was a “reasonable and entirely proper” distinction.  (Ibid.)  The Williams court concluded that “because we consider the state's interest in addicts' rehabilitation a compelling state interest, such disparate treatment does not violate principles of equal protection.”  (232 Cal.App.3d at pp. 1648–1649, 284 Cal.Rptr. 241.)

Miller and Williams have been followed by People v. Madison (1993) 17 Cal.App.4th 783, 22 Cal.Rptr.2d 157.  Madison also confronted the issue of whether a subsequently excluded CRC committee was entitled to work credits on equal protection grounds.   Following our decision in Miller, the Madison court also rejected the claim that an excluded CRC committee was entitled to work credits.  (17 Cal.App.4th at pp. 788–789, 22 Cal.Rptr.2d 157.)

 The teaching of Madison, Williams and our Miller case is clear.   An inmate committed to CRC is not entitled to worktime credits and the denial of such credits is not a violation of equal protection.   This is so even though the inmate is subsequently excluded from CRC for excessive criminality.   We decline appellant's invitation to revisit this issue.

II.

GOOD CONDUCT CREDITS

 Respondent contends that the trial court improperly awarded good conduct credits for appellant's period of commitment to CRC.   Appellant responds to this assertion defending his award of good conduct credits based on the language of Welfare and Institutions Code section 3201.²

The reference in Welfare and Institutions Code section 3201 to good behavior and participation credits as provided by Penal Code sections 2930 et sequitur does not award such credits.   Rather, this provision of the Welfare and Institutions Code is merely part of a formula for the determination of the outside limits of a CRC commitment.   It is not a direct award of conduct credits.   We conclude that Welfare and Institutions Code section 3201 is consistent with the legislative purpose to encourage CRC participation and eliminate the possibility of a longer stay at CRC than one would otherwise incur in state prison.

In any case, good conduct credits are available from Welfare and Institutions Code section 3201 only by operation of Penal Code section 2931.   Further, by the express terms of Penal Code section 2931, subdivision (d), section 2931 “shall not apply to any person whose crime was committed on or after January 1, 1983.”   There is no dispute that appellant's crime occurred in 1991.   As expressly stated in subdivision (d) of Penal Code section 2931, appellant is not entitled to good behavior credits for the time he served at CRC.

Appellant argues that it “is inconceivable that the legislature intended they receive no credits whatsoever․”  The answer to this contention, however, comes from People v. Madison, supra, 17 Cal.App.4th 783, 787, 22 Cal.Rptr.2d 157.   There, the appellate court noted that according to the Summary Digest for 1982 legislation, the legislative intent was that only worktime and not good behavior and participation credits would be available for offenses committed after January 1, 1983.   Cases which have found that the committees are entitled to conduct credits for time spent at CRC have done so upon an analysis based entirely on Welfare and Institutions Code section 3201.  (Madison, 17 Cal.App.4th at pp. 787–788, 22 Cal.Rptr.2d 157.)

The Madison court went on to find, however, that the source of conduct credits in Welfare and Institutions Code section 3201 was itself dependent on Penal Code section 2931.  Madison held that under the express provision of subdivision (d) of Penal Code section 2931 that the right to good conduct credits terminated for all offenses committed on or after January 1, 1983.  (17 Cal.App.4th at pp. 788–790, 22 Cal.Rptr.2d 157.)   We find the reasoning in Madison to be sound and therefore follow it.

In his reply brief, appellant argues that our Miller case acknowledged that Welfare and Institutions Code section 3201 afforded conduct credit to CRC committees who successfully completed the program.   (233 Cal.App.3d at p. 1553, 285 Cal.Rptr. 410.)  Miller noted that Welfare and Institutions Code section 3201 made Penal Code section 2931 applicable to CRC committees.  (Ibid.)  Appellant argues that because our Miller decision recognized the applicability of Penal Code section 2931 to Welfare and Institutions Code section 3201 that he is still entitled to such credits.

Appellant's reliance on Miller, however, is misplaced.   The Miller court was not confronted with the issue of conduct credits or their applicability to CRC committees.   The Miller court merely referred to Penal Code section 2931 as part of its prefatory comments to show that Welfare and Institutions Code section 3201 included Penal Code section 2931 in its express terms but not Penal Code section 2933, the worktime credit section.   The Miller case expressly held that it was deciding a single issue on appeal and that was the trial court's denial of work credits.   The Miller court stated the single issue before it as follows:

“The single issue raised on appeal is the trial court's denial of work credits (which would reduce the sentence up to one-half) pursuant to [Penal Code] section 2933 during the period he was at CRC against his subsequent state prison sentence.   We will hold he is not entitled to such worktime credits.”   (233 Cal.App.3d at p. 1553, 285 Cal.Rptr. 410.)

Appellant was not entitled to one-for-two credits for good conduct for the time he was committed to CRC.   Appellant was entitled only to good conduct credits for the time he served at Madera County jail.   For the time appellant spent at CRC, he was only entitled to credit for 172 days for the actual time he spent in that facility.  (See Pen.Code, § 2900.5, subds. (a), (f).)

The trial court thus erred in awarding appellant an extra 86 days of good conduct credits for the time he spent at CRC.   The trial court's reliance on People v. Talton (1983) 145 Cal.App.3d 729, 193 Cal.Rptr. 660 for these additional conduct credits is misplaced because the Talton case was decided at a time when criminal defendants who were serving time at CRC had committed their offenses before January 1, 1983, and were thus not affected by subdivision (d) of Penal Code section 2931.   The award of the unauthorized conduct credits results in a sentence not authorized by law which may be corrected by this court even though a more severe punishment results.  (In re Ricky H. (1981) 30 Cal.3d 176, 191, 178 Cal.Rptr. 324, 636 P.2d 13;  People v. Irvin (1991) 230 Cal.App.3d 180, 190–191, 281 Cal.Rptr. 195.)

Appellant's presentence time credits must be reduced by 86 days to a total of 376 (308 days for actual time in custody plus 68 days conduct credit).

In his supplemental letter brief dated April 4, 1994, appellant informs the court he was released on parole in March 1994 based upon the credits awarded by the trial court.   He contends that it would be bad for his morale to return to serve out the additional time.   He claims that if “returned to prison to serve out the additional time, it would be inequitable, constitute unduly harsh punishment and a denial of equal protection to appellant who entered his guilty plea based on the condition he be considered for drug treatment at CRC and under the assumption that he would receive conduct credit based on the previous practice of allowing conduct credits to CRC committees.”   The record, however, reveals that he made his request for CRC commitment with his eyes wide open concerning the probability of his exclusion.   At the original sentencing hearing the following items touched on the subject.

The probation report reported appellant's parole officer to have stated:

“Agent Jones feels ․ the defendant should not be committed to CRC because he is a career criminal, who is extensively involved in the drug subculture.   Agent Jones advised a CRC commitment is ‘ridiculous' and will not benefit him at all.”

Under the “Analysis” portion of the report, the probation officer in pertinent part concluded:

“The defendant is requesting a commitment to CRC, however, he will be excluded for excessive criminality, history of violence, and the inability to manage him in a minimum security facility, as he has a conviction for possessing controlled substances within a correctional facility.”

Mr. Magill, appellant's attorney, stated to the court:

“The last problem is—with CRC commitment is because of Mr. McEver's extensive criminality he may be excluded from CRC.

“What Mr. McEver always wanted, your Honor, was an opportunity for CRC to review him and see if he's a candidate.   And that would be our request today, have the Court send him to CRC and have CRC exclude him, if that's, in fact, what they will do.   At least that way he can get some drug treatment on the road to recovery.”

Following Mr. Magill's statement, appellant himself stated:

“More or less a recap of what Mr. Magill said is that I wish the Court to consider my plea to get some sort of drug rehabilitation.   Only place they have that is CRC․  I know I have a prior record, quite extensive prior record, but if the court will notice it, you know, the last mention of any kind of violent crime was 10 years ago.   And since then it's all been drug oriented more or less throughout.”

The trial court, in ordering commitment to CRC, indicated its feelings on the possibility of exclusion as follows:

“I'll suspend criminal proceedings and order that you be committed to the California Rehabilitation Center for the term prescribed.   I want you to realize there is a likelihood, I'm not too sure that you will be excluded.   I'm not positive that will occur.   If that occurs we will have you back here, you will go to prison, serve your four years and all.”

Appellant has shown no basis in law or fact for his claimed “assumption” when he entered his plea on December 16, 1991, to his July 18, 1991, offense that he would receive conduct credits for time at CRC.   He got exactly what he bargained (and virtually begged) for, a chance at CRC with the attendant risk and consequences of exclusion.   To allow him illegitimate credits would, as to all other prisoners serving legitimate time, be, to use appellant's language, “inequitable, constitute unduly harsh punishment and a denial of equal protection.”

Finally, in his letter brief appellant cites us to In re Monigold (1988) 205 Cal.App.3d 1224, 253 Cal.Rptr. 120.   In Monigold, the Fourth District, Division Three, in a split decision held that petitioner serving an indeterminate sentence could not be retroactively deprived of Penal Code section 2933, subdivision (a) work credits based upon a subsequent determination that such credits were not applicable to those serving indeterminate sentences.   Petitioner there, in reliance on the Department of Corrections' initial advice of eligibility and acceptance of applicant, had participated for four years in the considerably more restrictive work program.   Recalculation of credits resulted in a substantial postponement of his minimum eligible parole date.

The court concluded that Monigold suffered a detriment in reliance on the work credits offered him.   The program in which Monigold participated was much more rigid, demanding and resulted in reduction of other “benefits.”   Additionally, approximately 50 prisoners had then already benefited by the incorrect award of work credits.   The Monigold court stated that “[r]etroactive deferment of the first [parole] hearing date by some two years to this prisoner, who performed in good faith reliance on an interpretation of the Department of Corrections, essentially amounts to an indefensible and unwarranted additional punishment and does deny him equal protection vis-à-vis the fifty-four life inmates who have already participated in earlier parole hearings․”  (205 Cal.App.3d at p. 1230, 253 Cal.Rptr. 120.)

Monigold is readily distinguishable from appellant's situation.   Here, by contrast, other than perhaps frustrated thoughts of earlier release, appellant has shown no acts of reliance upon the incorrect credits.

DISPOSITION

We direct the superior court to modify the abstract of judgment to reflect presentence time credits totalling 376 days and to send a copy of the modified abstract to the appropriate authorities.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   The minute order dated September 18, 1992, accurately states that appellant should receive 154 days of conduct credit.   The record of the sentencing hearing on the same date shows the trial court stating that appellant was entitled to 152 days conduct credit.   The total of 462 days for time served and conduct credits, which is stated accurately by the trial court at the sentencing hearing, reflects the inclusion of 154 days (not the 152 days) appellant would be entitled to receive, assuming he is entitled to conduct credits for his stay at both Madera County jail and CRC.

2.   In relevant and representative part, Welfare and Institutions Code section 3201, subdivision (c) provides:“(c) Any person committed pursuant to Article 2 (commencing with Section 3050), whose execution of sentence in accordance with the provisions of Section 1170 of the Penal Code was suspended pending a commitment pursuant to Section 3051, who has spent, pursuant to this chapter, a period of time in confinement or in custody, excluding any time spent on outpatient status, equal to that which he or she would have otherwise spent in state prison had sentence been executed, including application of good behavior and participation credit provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code, shall, upon reaching such accumulation of time, be released on parole under the jurisdiction of the Narcotic Addict Evaluation Authority subject to all of the conditions imposed by the authority and subject to the provisions of Article 1 (commencing with Section 3000) of Chapter 8 of Title 1 of Part 3 of the Penal Code․”  (Emphasis added.)

HARRIS, Associate Justice.

ARDAIZ, Acting P.J., and VARTABEDIAN, J., concur.