PEOPLE v. RAMIREZ (1977)

On October 8, 1970, appellant Lawrence J. Ramirez was convicted of second degree burglary in violation of Penal Code section 459 after he pleaded not guilty. (Case No. A 254109.) On January 14, 1971, in a separate case (case No. A 419523) he pleaded guilty to possession of heroin in violation of former Health and Safety Code section 11500.¹ In both cases appellant was adjudged a narcotic addict or in imminent danger of becoming one and was committed to the California Department of Corrections pursuant to Welfare and Institutions Code section 3051. He was released on outpatient status in 1974.

On April 29, 1976, the Department of Corrections found that appellant was not a suitable subject for its program. The superior court discharged his commitment in each and ordered him returned to the court to resume criminal proceedings.

In case No. A 254109, at the hearing held pursuant to Welfare and Institutions Code section 3053, appellant argued that the procedures used by the California Rehabilitation Center (CRC) in excluding him from its program violated his constitutional rights. Appellant also climed that the person who signed the letter of exclusion did not have power to do so and that the director abused his discretion in excluding him ffom CRC. The trial court upheld the exclusion. On the date set for sentencing, the trial court granted appellant probation for a period of three years, the condition thereof being that he spend six months in the county jail, with probation to terminate upon the completion of county jail time. The burglary was deemed to be a misdemeanor. (Pen.Code, § 17.)

In case No. A 419523 appellant personally waived his constitutional rights to a hearing and the matter was submitted, pursuant to stipulation of counsel, upon the disposition in case No. A 254109. The court denied probation and sentenced appellant to state prison for the term prescribed by law, with credit for time theretofore spent in custody.

Appellant appeals from the orders in both cases excluding him from CRC (Code Civ.Proc., § 904.1, subd. (b); People v. Peoro, 56 Cal.App.3d 35, 39, 128 Cal.Rptr. 130) and from the judgment in case No. A 419523 (Pen. Code, § 1237, subd. (1)). He contends that (1) he was denied due process in the exclusion from CRC; (2) the trial court abused its discretion in sentencing him in case No. A 419523; and (3) the exclusion from CRC which was based on the letter of April 7, 1976, is invalid.

Discussion

1. Due Process Violation.

Appellant contends that the procedures used to exclude him from CRC violated due process of law principles enunciated in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. We have examined the CRC exclusion procedures and, for the reasons set forth below, we have determined that they do not violate due process.

Welfare and Institutions Code section 3053 provides as follows: ‘If at any time following receipt at the facility of a person committed pursuant to this article, 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 narcotic detention, treatment and 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.’ After an individual has been ‘excluded’ from CRC, he or she is entitled to a hearing in the superior court. The court, upon request of the defendant, must review the director's administrative action in excluding the defendant from the program to determine whether the director abused his discretion. (People v. Wisdom, 47 Cal.App.3d 482, 488, 120 Cal.Rptr. 745; People v. Morgan, 21 Cal.App.3d 33, 38, 98 Cal.Rptr. 165.) ‘[T]he judge has no expertise to decide, and the statute does not assume that he will decide, that the defendant, in fact, is a fit subject for commitment and treatment, judged either by his past record or by his ability . . . to respond to treatment; the judicial decision is merely that, as far as the court's limited knowledge about defendant, and the judge's nonexpert opinion, permit, it is worthwhile to try the rehabilitation program in his case. But whether or not any given defendant can be treated with success is a fact which, in the last analysis, must be determined not by judges but by people trained in that field and actually engaged in the treatment process.’ (People v. Marquez, 245 Cal.App.2d 253, 256, 53 Cal.Rptr. 854, 857.)

Appellant asserts that the due process principles of morrisey v. Brewer, supra, must be applied to these procedures. In Morrissey the United States Supreme Court held that a parolee threatened with revocation of parole was entitled to a prerevocation hearing held near the site of the alleged violation, followed by a formal revocation hearing before a neutral and detached body (408 U.S. at pp. 486–487, 489, 92 S.Ct. 2593, 33 L.Ed.2d at pp. 497–498, 499), each including minimum requirements of due process. In order for these principles to be applied, the interest of an individual in the matter of exclusion from CRC must be embraced within the concept of ‘liberty’ protected by the Fourteenth Amendment. (See Morrissey v. Brewer, supra, 408 U.S. at p. 482, 92 S.Ct. 2593, 33 L.Ed.2d at p. 495; Wolff v. McDonnell (1974) 418 U.S. 539, 556–557, 94 S.Ct. 2963, 41 L.Ed.2d 935, 951; In re Bye, 12 Cal.3d 96, 100–101, 115 Cal.Rptr. 382, 524 P.2d 854.)

Several courts have considered whether similar interests are entitled to due process protection. The California Supreme Court in In re Bye, supra, 12 Cal.3d 96, 115 Cal.Rptr. 382, 524 P.2d 854, held that an individual who had been committed to CRC as a narcotics addict, subsequently granted outpatient status, and thereafter threatened with the revocation of such status pursuant to Welfare and Institutions Code section 3152,² was entitled to due process protection.³ The court stated that the status of an outpatient is similar to that of a parolee. Each ‘has relied on the state's promise that his conditional liberty will not be revoked unless he fails to abide by the conditions of his release and he is obligated to control his conduct accordingly.’ (12 Cal.3d at p. 102, 115 Cal.Rptr. at p. 858, 524 P.2d at p. 386; see also Note, Control and Treatment of Narcotic Addicts: Civil Commitment in California (1969) 6 San Diego L.Rev. 35, 45.)

Respondent relies on three Court of Appeal decisions, all decided prior to Bye, to support the proposition that due process procedures need not be afforded prior to the hearing in the superior court. In People v. Pruett, 31 Cal.App.3d 1, 4, 105 Cal.Rptr. 204, the court held that Morrissey requirements of due process did not apply where a CRC inpatient was returned to the superior court for further criminal proceedings. The court stated that revocation of parole or probation involves situations where an individual has been granted a ‘qualified’ liberty. ‘[A] person committed to the Rehabilitation Center has not been granted any liberty—qualified or unqualified. He has been subjected to incarceration, in a security institution.’ (Id. at p. 4, 105 Cal.Rptr. at p. 206.) The court specifically refrained from determining ‘[w]hether Morrissey would apply to a return, under section 3152 of the Welfare and Institutions Code, of persons previously granted ‘out-patient status' under section 3151’. (Id. at p. 4, fn. 2, 105 Cal.Rptr. at p. 206.)

The same court determined that Morrissey procedures were inapplicable where an outpatient was returned to the superior court after he pleaded guilty to a burglary committed while he was on outpatient status. (People v. Gifford, 38 Cal.App.3d 89, 90–91, 113 Cal.Rptr. 112.) Since his conviction rendered him ineligible for further commitment as a matter of law, and the only issue which could have been raised was his identity, no purpose would have been served by requiring Morrissey procedures. (Id. at p. 91, 113 Cal.Rptr. 112.)

Finally, in People v. Hillock, 39 Cal.App.3d 36, 113 Cal.Rptr. 823, the court held that Morrissey procedures did not apply where an outpatient was excluded from CRC. The court noted that ‘[t]he action of the superintendent is not to be compared with that of a board in revoking parole, or of a court in revoking probation; it is more nearly analogous to that of a probation officer in recommending that probation be revoked, which action is followed . . . by a hearing before the court, wherein the defendant has the opportunity to appear, to confront and cross-examine the witnesses against him, and to testify in his own behalf.'⁴ (Id. at pp. 38–39, 113 Cal.Rptr. at p. 824; see also Ingram v. Rees (N.D.Cal. 1976) 407 F.Supp. 226, 227.)

Appellant asserts that these cases are no longer valid since the Supreme Court's decision in In re Bye and he relies on People v. Rivera, 64 Cal.App.3d 644, 134 Cal.Rptr. 692, for this position. In Rivera the individuals were released on outpatient status from CRC and failed to report to their respective parole agents for over a year. When an individual has not been heard from for over a year, the policy of CRC was to recommend resumption of criminal proceedings without considering the facts of the individual case. (Id. at p. 647, 134 Cal.Rptr. 692.) The court held that the trial court acted properly in ordering CRC to reconsider its decision to exclude the defendants. (Id. at p. 654, 134 Cal.Rptr. 692.) In Rivera CRC exercised no discretion in excluding the defendants and ‘instead followed an established, inalterable policy applicable to any outpatient who was missing for over one year’. (Id. at p. 652, 134 Cal.Rptr. at pp. 696–697.) The court carefully distinguished the Pruett, Gifford and Hillock cases, which have been discussed hereinabove, and held that CRC was required to hold a hearing since the specific facts of each case of a ‘missing’ outpatient were not considered. Rivera, therefore, does not support the proposition that before an outpatient may be excluded from CRC, a hearing must be conducted in all cases.

In the present case we hold that the governing law did not require a hearing before appellant could be excluded from the program. Appellant's exclusion was not based upon an arbitrary policy but, rather, upon his continuing criminal activity, his violent behavior, and his lack of present opiate addiction. As in Hillock, an ample record of the basis for appellant's exclusion was presented to the superior court. The facts in this case do not merit an extension of the situations in which such a Morrissey hearing is required.

2. Denial of Probation.

Appellant contends that the trial court abused its discretion in denying him probation in case No. A 419523. Upon return to the court from CRC, the trial court denied probation and sentenced appellant to the term prescribed by law for violation of former Health and Safety Code section 11500. Appellant asserts that the trial court rejected probation solely because appellant had been excluded from CRC and refused to exercise proper discretion. To support this theory, appellant relies on the following comments made by the trial court at the probation and sentence hearing: ‘It has been the Court's experience that most people who are given the advantage of a CRC commitment are treated very well. They are released as soon as possible. They are given OPS [outpatient status] as soon as possible. The California Rehabilitation Center parole people are very reluctant at anytime [sic] to bring anybody back into the security portion of the program, and this Court only gets people from CRC on rejection in very extreme cases, and the Court feels that if a person doesn't appreciate his CRC commitment, which is an act of charity by the courts and by the taxpayers of this county for his rehabilitative purposes sufficiently to abide by the conditions and the rules of the CRC program, that to allow them to go in and out of it with minor adjustments is completely distructive [sic] to the whole program.’

Probation is a matter within the discretion of the trial court. Unless a clear abuse of discretion is established, the court's ruling will not be disturbed on appeal. (People v. Podesto, 62 Cal.App.3d 708, 723, 133 Cal.Rptr. 409.) A trial court is presumed to have acted properly in the absence of a clear showing that its determination was arbitrary or irrational. (People v. Gimenez, 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.) The defendant has the heavy burden of demonstrating such abuse. (People v. Kingston, 44 Cal.App.3d 629, 637, 118 Cal.Rptr. 896; People v. Brown, 271 Cal.App.2d 391, 396, 76 Cal.Rptr. 568.)

Appellant claims that the trial court failed to exercise its discretion since it treated appellant as a member of a class and not as an individual. (See In re Minnis, 7 Cal.3d 639, 647, 102 Cal.Rptr. 749, 498 P.2d 997 (action by the Adult Authority).) Appellant additionally contends that the trial court only considered the fact of his exclusion from CRC in sentencing him. Even if consideration be limited to the above comments made by the trial court, it is not manifest that appellant was denied probation solely because he was excluded from CRC. The trial court's determination will not be overturned because of secondary remarks if the record as a whole indicates a proper exercise of discretion. (People v. Lichens, 59 Cal.2d 587, 588–590, 30 Cal.Rptr. 468, 381 P.2d 204.)

Upon a review of the record in this case, we cannot say that the trial court abuse its discretion in sentencing appellant. The trial judge stated that he had read and considered the probation report. The probation report recommended denial of probation. Appellant's counsel argued that probation should be granted and pointed to the accomplishments of appellant since his conviction. The court then sentenced appellant to the term prescribed by law for the offense of which he had been convicted.

The trial court thus followed the recommendation of the probation officer. Although a statement of reasons for denying probation is the preferred practice, such a statement is not constitutionally compelled or required by the Supreme Court's supervisory powers. (People v. Edwards, 18 Cal.3d 796, 799, 135 Cal.Rptr. 411, 557 P.2d 995.) The trial court in the present case did not act arbitrarily or capriciously. It considered appellant's record since 1970 when he was first committed to CRC and determined that probation should not be granted. The fact that another judge granted appellant probation in the other case does not demonstrate that the trial court abused its discretion in the case presently under discussion. (See People v. Podesto, supra, 62 Cal.App.3d at p. 724, 133 Cal.Rptr. 409.)

3. The Letter of Exclusion.

Appellant contends that his exclusion from CRC is invalid since the letter of exclusion written to the superior court was signed by the Regional Administrator of the Department of Corrections rather than by the Director of Corrections. This contention lacks merit.

Although Welfare and Institutions Code section 3053 specifically provides that the Director of Corrections shall make the decision to exclude the individual,⁵ courts have interpreted this statute to include his delegate, the superintendent of CRC (People v. Hakeem, 268 Cal.App.2d 877, 882, 74 Cal.Rptr. 511), and also an acting superintendent of CRC (People v. Blackwell, 45 Cal.App.3d 804, 811, 119 Cal.Rptr. 768).

Penal Code section 5055 provides in pertinent part as follows: ‘Whenever a power is granted to the Director of Corrections or a duty is imposed upon the director, the power may be exercised or the duty performed by a deputy of the director or by a person authorized pursuant to law by the director.’

In chapter III, section CL-III-OO, of the now obsolete version of the Department of Corrections Inmate Classification Manual which was in effect at the time appellant's exclusion letter was issued, the Director of Corrections authorized the Regional Administrator to sign this document. The manual provided, in pertinent part, that pursuant to Penal Code section 5055:

‘Incumbents of the following positions are authorized to sign certain classification documents on behalf of the Director of Corrections during the period of their assignment in the specified position.

‘. . .

‘Civil commitment cases

‘Authority to sign documents on my behalf is delegated to the following positions of institutions housing civil addict commitments and the parole division: Superintendent, Deputy Superintendent, Regional Administrator, and Assistant Regional Administrator.

‘This delegation consists of certification of cases to courts for further proceedings under Sections 3053, 3109, 3200 and 3201 of the Welfare and Institutions Code and certification of cases to the Narcotic Addict Evaluation Authority under Section 3151 of the Welfare and Institutions Code.’

Under this provision, the Regional Administrator was clearly vested with authority by the Director of Corrections pursuant to Penal Code section 5055 and the letter of exclusion was properly issued.

Disposition

The orders in cases No. A 254109 and No. A 419523 as to the exclusion of appellant from the California Rehabilitation Center are affirmed and the judgment in case No. A 419523 is affirmed.

FOOTNOTES

1.  This provision, which concerned possession of any narcotic other than marijuana, was repealed in 1972 (see Stats. 1972, ch. 1407, p. 2987, § 2) and a similar provision (Health & Saf. Code, § 11350) was added. (See Stats. 1972, ch. 1407, p. 2987, § 3.)

2.  Section 3152 provides in pertinent part as follows: ‘The rules for persons in outpatient status shall include but not be limited to . . . return to inpatient status at the California Rehabilitation Center or its branches at the discretion of the authority, if from the reports of agents of the Department of Corrections or other information including reports of law enforcement officers as to the conduct of the person, the authority concludes that it is for the best interests of the person and society that this be done.’

3.  In Bye the court recognized that due process is a flexible concept and the procedures vary with the subject matter. (12 Cal.3d at p. 103, 115 Cal.Rptr. 382, 524 P.2d 854.) Consequently, the court held that an in-community prerevocation hearing, required in Morrissey, was not necessary in this situation. (12 Cal.3d at pp. 108–109, 115 Cal.Rptr. 382, 524 P.2d 854; see also Due Process in Parole Revocation Proceedings (1975) 63 Cal.L.Rev. 276, 280–281.) The individual is entitled to a single revocation hearing at CRC with the following safeguards: ‘(1) written notice of the claimed violations of his release; (2) disclosure of evidence against him; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (5) a neutral hearing body such as the NAEA or a hearing officer or officers selected by the NAEA; and (6) a written statement by the factfinder as to the evidence relied on and reasons for revoking outpatient status. In addition, the outpatient should be represented by counsel if NAEA determines that the matter comes within the ambit of those cases where such assistance is deemed necessary under the guidelines set out in In re Love (1974) 11 Cal.3d 179, 186, 113 Cal.Rptr. 89, 520 P.2d 713, and Gagnon v. Scarpelli (1973) 411 U.S. 778, 790–791, 93 S.Ct. 1756, 36 L.Ed.2d 656 [666–667].’ (12 Cal.3d at p. 110, 115 Cal.Rptr. at p. 391, 524 P.2d at p. 863.)

4.  It also should be noted that in Hillock the question of exclusion was considered at two administrative hearings: the first before correctional personnel and the second before two associate superintendents and a deputy superintendent. (39 Cal.App.3d at p. 38, 113 Cal.Rptr. 823.)

5.  Welfare and Institutions Code section 3053 states in pertinent part: ‘If . . . the Director of Corrections concludes that the person . . . is not a fit subject . . ..’

FORD, Presiding Justice.

ALLPORT, and POTTER, JJ., concur.