PEOPLE v. HEARD (1991)

OPINION

An amended information filed on May 25, 1989, charged appellant with two counts of possession of a controlled substance.  (Health & Saf. Code, § 11350.)   The information further alleged appellant had suffered a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).  After a jury trial, appellant was found guilty on both counts.   Appellant waived her right to a jury trial on the prior and the trial court found the allegation true.   Appellant was sentenced to the upper term of three years on count I and the middle term of two years on count II, one-third of which was to be served consecutive to the term imposed on count I.   An additional year was imposed for the prior prison term pursuant to Penal Code section 667.5.   The court then suspended execution of sentence and granted appellant probation on certain terms and conditions.

The issue presented is whether a prison term ordered executed and deemed served pursuant to Welfare and Institutions Code section 3201 constitutes a prior prison term within the meaning of Penal Code section 667.5.   For the reasons set forth below, we conclude it does.

DISCUSSION

The record shows appellant had prior convictions in 1978 for selling a controlled substance (Health & Saf.Code, § 11352) and conspiracy (Pen.Code, § 182).¹  She also had prior convictions in 1980 for selling a controlled substance and for second degree burglary.   In May 1980 criminal proceedings were adjourned in the foregoing cases without sentence being imposed and appellant was committed to California Rehabilitation Center (CRC) pursuant to the provisions of Welfare and Institutions Code section 3051.   Appellant was received at CRC on May 24, 1980.

Appellant was committed to CRC prior to amendment of the sections governing commitment of narcotics addicts (Welf. & Inst.Code, § 3000 et seq.)   The relevant statutes at that time provided that “if a criminal offender was found to have a treatable drug problem, sentence could be withheld or suspended and the offender committed for an indeterminate period of treatment at ․ (CRC).  [Citation.]”  (In re Huffman (1986) 42 Cal.3d 552, 558, 229 Cal.Rptr. 789, 724 P.2d 475.)   The maximum period of confinement in CRC was seven years with a possible three-year extension.   Where the offender had not been discharged from the treatment program prior to expiration of the maximum period of confinement, Welfare and Institutions Code section 3201 required that he be returned for sentencing.  “[A]lthough their charges [could] be dismissed, they [could] also be committed to prison, depending on the sentence for the underlying offense, the amount of time already spent in CRC and the discretion of the sentencing court.”  (In re Morales, (1981), 115 Cal.App.3d 456, 461, 171 Cal.Rptr. 425.)

Effective July 29, 1980, Welfare and Institutions Code section 3051 was amended to require that sentence be imposed before commitment proceedings were instituted.  (Stats.1980, ch. 822, § 1, p. 2584.)   Additionally, the maximum term for a CRC commitment for those whose crimes were committed after the amendment's effective date was limited to the determinate sentence for the underlying offense.  (Stats.1980, ch. 822, § 8, p. 2588.)   Once the offender has been confined for a period equal to his prison term, he “shall be released on parole under the jurisdiction of the Narcotic Addict Evaluation Authority․”  (Welf. & Inst.Code, § 3201, sub. (c).)  On completion of the parole term, “the person shall be returned ․ to the court from which he or she was committed, which court shall discharge such person from the program and order him or her returned to the court which suspended execution of the person's sentence to state prison.”  (Ibid.)  The sentencing court has discretion to “suspend or terminate further proceedings in the interest of justice, modify the sentence in the same manner as if the commitment had been recalled pursuant to subdivision (d) of Section 1170 of the Penal Code, or order execution of the suspended sentence.   Upon the ordering of the execution of such sentence, the term imposed shall be deemed to have been served in full.”  (Ibid., italics added.)

“The amendments were expressly made applicable only to persons, unlike petitioner, whose crimes were committed after the effective date of July 29, 1980.  (Stats.1980 ch. 822, § 9, p. 2590.)   However, the Court of Appeal has concluded that such prospective application denied equal protection to CRC patients whose offenses occurred before that date.  (In re Morales (1981) 115 Cal.App.3d 456, 463 [171 Cal.Rptr. 425]․”  Huffman, supra, 42 Cal.3d at p. 558, 229 Cal.Rptr. 789, 724 P.2d 475.)

In 1984 appellant petitioned pursuant to In re Morales to be returned to court for imposition of sentence under the determinate sentencing law.   On November 9, 1984, the court sentenced appellant to a total unstayed term of five years and four months.   Because the time spent at CRC exceeded the sentence imposed, the prison term imposed was deemed fully served and the court ordered that appellant “be released forthwith.”

Applicability of Welfare and Institutions Code Section 3201

Appellant first asserts the present case “does not present a prison term which would be deemed served under ․ section 3201.”   She argues the provisions of Welfare and Institutions Code section 3201 “which deem a prison sentence to have been served refer to a sentence which (1) was previously imposed and suspended pending the commitment, and (2) is ordered executed by the court after completion of the maximum term in CRC.   No such creature is before the court here.”   She asserts a defendant committed to CRC without imposition of sentence as authorized prior to the 1980 amendment, “fall[s] under subdivision (a) of [section 3201], and should therefore be discharged from CRC without further judicial proceedings after 16 months of confinement.” ²  Her argument lacks merit.   As this court stated in People v. Velasquez (1984) 156 Cal.App.3d 477, 202 Cal.Rptr. 786:

“In re Morales, supra, requires that CRC inmates committed before July 29, 1980, the effective date of the amendment to ․ section 3201 ․ are entitled to the benefit of the amendment as a matter of equal protection;  hence, they should be returned to the superior court for imposition of sentence on the underlying offense.”  (People v. Velasquez (1984) 156 Cal.App.3d 477, 479, fn. 1 [202 Cal.Rptr. 786], emphasis added.)

Prior Prison Term

Penal Code section 667.5, subdivision (b) provides for a one-year sentence enhancement “for each prior separate prison term served for any felony.”   Subdivision (h) defines a prison term as “any confinement time in any state prison or federal penal institution as punishment for commission of an offense, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of the confinement.”  “[S]ection 667.5(b) ․ provides a special sentence enhancement for that particular subset of ‘prior felony convictions' that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment.  [Citations.]”  (People v. Prather (1990) 50 Cal.3d 428, 440, 267 Cal.Rptr. 605, 787 P.2d 1012, emphasis in original.)

The issue of whether a prison term ordered executed and deemed served pursuant to Welfare and Institution Code section 3201 appears to be one of first impression.   Although two cases have held that a CRC commitment did not constitute a prior prison term (People v. Martinez (1980) 106 Cal.App.3d 524, 165 Cal.Rptr. 160;  People v. Lara (1979) 95 Cal.App.3d 247, 158 Cal.Rptr. 847), neither of them involve a situation where sentence was ordered executed and deemed served under Welfare and Institutions Code section 3201.   Moreover, neither case addresses Penal Code section 1170, subdivision (a)(2), which provides in relevant part:

“In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence, including any period of parole under Section 3000, shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the Director of Corrections.   However, any such sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the Director of Corrections.”   (Emphasis added.)

Under Penal Code section 1170, subdivision (a)(2), where a court imposes a state prison term but finds the time served prior to imprisonment meets or exceeds the sentence imposed, the defendant is deemed actually to have served the state prison sentence for purposes of Penal Code section 667.5 even though he had not actually entered state prison.   The present case clearly falls within the ambit of Penal Code section 1170, subdivision (a)(2).   As previously noted, appellant was committed to CRC prior to the 1980 amendment requiring sentence be imposed before commencement of commitment proceedings.   After the court imposed sentence pursuant to Morales, it then had discretion under Welfare and Institutions Code section 3201 to suspend or terminate further proceedings, modify the sentence, or order execution of the sentence.   In the present case, the court chose to order execution of the sentence.   Because the time served in CRC exceeded that of the determinate sentence imposed, the prison term was deemed fully served.

Appellant argues the People are “estopped from relying on the legal fiction created by Penal Code section 1170.”   Relying on the above underscored language, appellant contends Penal Code section 1170, subdivision (a)(2) “declares that when a court imposes a state prison sentence but finds that presentence custody credits meet or exceed the sentence imposed, the defendant is deemed to have actually served the state prison sentence for purposes of section 667.5 (although he has not entered CDC custody), in exchange for which the defendant is also deemed to have served the required period of parole.”   She further asserts:  “Obviously the State has denied appellant the benefit of this rule when, in complete derogation of section 1170, subdivision (2), the superior court placed her on parole and permitted her to suffer three years of either continuous or intermittent parole-related incarceration.”   According to appellant, because the state previously denied her the benefit of section 1170 by requiring her to serve a parole period, it should not now be permitted to rely on that section in establishing a prior prison term within the meaning of Penal Code section 667.5.

She bases her argument on a faulty construction of Penal Code section 1170.   The construction is

“untenable because section 1170, subdivision (e) expressly provides ‘[a]ny sentence imposed under this article shall be subject to the provisions of Sections 3000 and 3057 and any other applicable provisions of law.’   Section 3000 in turn relevantly provides:  ‘A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, as provided in this section.’   Similarly, section 2900.5, subdivision (a) provides in part:  ‘If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served.’   Subdivision (c) then defines ‘term of imprisonment’ for that section as including ‘any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency.’   Reading these provisions together, it becomes apparent ‘sentence,’ as used in section 1170, subdivision (a)(2), includes any applicable period of parole.”  (In re Jantz (1984) 162 Cal.App.3d 412, 416–417 [208 Cal.Rptr. 619].)

Moreover, Welfare and Institutions Code section 3201 provides that where a defendant is released from CRC because he had been confined for a period equal to his prison term, he “shall 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.”   (§ 3201, subdivision (c);  Huffman, supra, 42 Cal.3d at p. 558, 229 Cal.Rptr. 789, 724 P.2d 475.)

DISPOSITION

A prison term imposed, ordered executed, and deemed served pursuant to Welfare and Institutions Code section 3201 constitutes a prior prison term within the meaning of Penal Code section 667.5.   Accordingly, we find no sentencing error in the present case.

The judgment is affirmed.

ORDER ON GRANT OF REHEARING

Jan. 24, 1991.

Appellant's petition for rehearing in the above captioned matter is granted. Additional briefing is requested only on the following issue:

1. Whether the term ‘such sentence‘ in Penal Code section 1170, subdivision (a)(2) as used for purposes of a prior prison term under Penal Code section 667.5 must be construed to mean the determined term of imprisonment plus any period of parole, or whether the term ‘such sentence‘ for purposes of Penal Code section 667.5 only refers to the determinate term of imprisonment imposed?

Appellant is directed to file her brief no later than February 7, 1991. Respondent is directed to file its reply brief within ten days of the date appellant's brief is filed.

ARDIAZ, Associate Justice.

STONE (Wm. A.), Acting P.J., and THAXTER, J., concur.STONE (WM. A.), Acting P.J., and Thaxter, J., concur.