Murillo, In re
| Decision Date | 01 November 1973 |
| Docket Number | Cr. N |
| Citation | 110 Cal.Rptr. 494,35 Cal.App.3d 71 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Joaquin MURILLO on Habeas Corpus. o. 1545. |
For Opinion on Hearing, see 115 Cal.Rptr. 393, 524 P.2d 865.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., James T. McNally any Brian Taugher, Deputy Attys. Gen., Sacramento, for appellant.
Jay W. Powell, Public Defender, Visalia, for respondent.
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The People of the State of California have appealed from an order of the Superior Court of Tulare County granting the petition of respondent, Joaquin Murillo, for writ of habeas corpus and ordering that respondent be released from the custody of the Tulare County Sheriff pursuant to the hold which had been placed upon him by a parole agent of the State of California.
On February 5, 1973, respondent was released from the California Rehabilitation Center to outpatient status. One of the conditions of his release was that he report to his parole agent in the community.
Although the need to report is impressed on all addicts released to outpatient status, respondent did not report. He told the parole agent that he did not report because he knew that he was 'dirty' (using narcotics) and wanted to clean up before reporting.
On February 13, 1973, respondent's parole agent, along with several other agents, visited respondent's home. The premises were searched, and respondent was found hiding in a bedroom closet. Respondent admitted using narcotics, and he had puncture marks on his arms. Respondent was then taken into custody and incarcerated at the Tulare County jail where he remained until February 28, 1973.
On February 13, 1973, an initial emergency report describing the incident was sent by respondent's agent to the parole supervisor in Fresno. An initial case conference was held between the agent and another local agent on the same day.
On February 20, 1973, a full board report was prepared and forwarded to the Narcotic Addict Evaluation Authority (N.A.E.A.).
On February 28, 1973, the N.A.E.A. acted on the initial emergency report and revoked respondent's outpatient status and ordered him returned to C.R.C.
During the hearing on the petition, a parole agent testified that the outpatient is free to contact any parole agent or parole supervisor to present his side of the facts and may send a letter to the N.A.E.A. Moreover, the facts of the violation are fully reviewed upon the addict's return to C.R.C. However, the agent testified that he did not personally inform respondent of his right to present his side of the story to parole supervisors. Respondent was not apprised in writing of the violation of the terms of his release, nor was he given a personal hearing before an impartial tribunal.
The parole agent further testified that addicts released to outpatient status frequently relapse, are returned to the treatment facility for a short period of time and then are released again. He testified that the authorities experiment and attempt to put a man in the community to see if he can make it. If not, the addict is returned for a short period of stabilization, usually 60 days, and then re-released. He stated that it is not unusual for a narcotic addict to make several trips between the C.R.C. and the community before finally abstaining from the use of narcotics.
On February 27, 1973, respondent filed his petition for a writ of habeas corpus in the Tulare County Superior Court alleging that he was confined in the Tulare County jail pursuant to Welfare and Institutions Code section 3151 without due process of law.
On March 1, 1973, after the public defender was appointed to represent respondent, respondent filed a petition for writ of habeas corpus, alleging that he was not afforded an in-community preliminary prerevocation hearing pursuant to the dictates of Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.
On March 8, 1973, after a hearing on respondent's writ, the superior court granted the writ of habeas corpus and ordered that respondent be discharged from the custody of the Tulare County Sheriff. The superior court stayed its order until March 9, 1973.
On March 9, 1973, this court stayed the order of the superior court, and on March 13, 1973, appellant filed its timely notice of appeal.
Does due process require that an addict committed to C.R.C. under Welfare and Institutions Code section 3051, who has been placed on outpatient status, be afforded the procedures described in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, for a 'preliminary hearing' before his involuntary return to C.R.C. for violation of the conditions of his release on outpatient status?
Under present California case law, a civil addict on outpatient status from California Rehabilitation Center (C.R.C.) is not entitled to notice or a hearing before suspension of his outpatient status and return to C.R.C. (In re Marks (1969) 71 Cal.2d 31, 77 Cal.Rptr. 1, 453 P.2d 441.)
In re Marks, supra, at pages 45-47, 77 Cal.Rptr. at pages 11-12, 453 P.2d at pages 451-452, states:
'Petitioner next complains that the procedure by which the NAEA suspended his outpatient status deprived him of due process of law. In particular, he contends that he was entitled to (1) notice of the charges upon which the Authority proposed to suspend his outpatient status, (2) opportunity to be heard in rebuttal of those charges, (3) assistance of counsel at such a hearing, and (4) written findings and conclusions to support the action taken by the Authority.
'Petitioner misconceives the nature of these proceedings. As originally enacted in 1961, the first predecessor to Welfare and Institutions Code section 3151 (former Pen.Code, § 6403: Stats.1961, ch. 850, p. 2223) vested in the Adult Authority the administration of the 'parole' (i. e., conditional release) portion of the CRC program. In In re De La O (1963) supra, 59 Cal.2d 128, 144, 28 Cal.Rptr. 489, 499, 378 P.2d 793, 803, we observed that the statute 'provides (and reasonably so) that persons paroled thereunder are 'subject to being retaken and reconfined in the same manner as other parolees are retaken'' (italics added). In the 1963 revision of the narcotics addict commitment law all references in the original statute to 'parole' were changed to 'outpatient status,' and the responsibility for administering the release program was transferred from the Adult Authority to the newly created NAEA. (Former Pen.Code, § 6516; Stats.1963, ch. 1706, p. 3356.) But these changes were largely pro forma, designed to eliminate some of the external 'indicia of criminality' in the original statute that had been noted in De La O. When in 1965 the statute was recodified into the Welfare and Institutions Code for the same reason, the 1963 language dealing with release and retaking of outpatients was transferred intact to the present section 3151. Construing that language, it has recently been noted that 'although the California Rehabilitation Center outpatient is not officially called a parolee, the manner and methods of release and the continuing control and supervision of a parolee from prison and an outpatient from California Rehabilitation Center are strikingly similar,' particularly 'with reference to the respective return to confinement of parole violators and California Rehabilitation Center outpatient violators.' (49 Ops.Cal.Atty.Gen. 11 (1967).)
'As this court has repeatedly recognized, 'it is settled that the Adult Authority may suspend, cancel, or revoke a parole for good cause without notice or hearing. . . .' (Italics added.) [Citation.] Petitioner seeks to distinguish this rule on the ground that it is based on affirmative statutory authorization (Pen.Code, § 3060), while the narcotics addict commitment law is silent on the point. Equally silent in this respect, however, is the statute granting trial courts the analogous power to revoke probation (Pen.Code, § 1203.2), yet we have squarely held that 'there is neither a constitutional nor a statutory right to notice and hearing preceding revocation of probation.' (In re Davis (1951) 37 Cal.2d 872, 873, 236 P.2d 579, 580.) And we have applied the same rule to the exercise of the Adult Authority's power to determine and redetermine sentences. [Citation.] With regard to such special proceeding, in short, there is no statutory right to notice and hearing unless it is specifically granted by the Legislature. Thus had the statute provided for notice and hearing in connection with the suspension of outpatient status by the NAEA, we would have strictly enforced such a requirement [citation]; but in the absence of an express provision to this effect, 'It is not . . . for the courts to revise such a 'creature of statute" as the narcotics addict commitment program [citation].
'Lacking a statutory mandate for notice and hearing, petitioner invokes the due process clause for the Fourteenth Amendment. But as we observed in Davis (37 Cal.2d at p. 873, 236 P.2d, at p. 580), 'The federal Constitution does not give such a right. [Citation.]'' (Fn. omitted.)
The court, at page 48, 77 Cal.Rptr. at page 13, 453 P.2d at page 453, further states:
(Fn. omitted.)
The court in Marks states that...
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