People v. Abdullah

• Decision Date: 04 June 1992
• Docket Number: No. D014732,D014732
• Citation: 6 Cal.App.4th 1728,9 Cal.Rptr.2d 131
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hanif Saladin ABDULLAH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 131

9 Cal.Rptr.2d 131

6 Cal.App.4th 1728

The PEOPLE, Plaintiff and Respondent, v. Hanif Saladin ABDULLAH, Defendant and Appellant.

No. D014732.

Court of Appeal, Fourth District, Division 1, California.

June 4, 1992.

Review Denied Aug. 13, 1992.

[6 Cal.App.4th 1731] Susan Cardine, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Pat Zaharopoulos, Supervising Atty. Gen., and Keith I. Motley, Deputy Atty. Gen., for plaintiff and respondent.

NARES, Associate Justice.

Hanif Saladin Abdullah (Abdullah) appeals, following his plea of guilty to receiving stolen property in violation of Penal Code section 496. ¹ Abdullah challenges two aspects of his sentencing, asserting (1)

he is entitled to section 2933 credits for his time spent at the California Rehabilitation Center (CRC) before his exclusion therefrom, and (2) the trial court failed to consider the option of commitment to federal custody under section 1170.9 for Abdullah, a Vietnam veteran. We reject these contentions of error, and affirm the judgment.

BACKGROUND

By complaint filed October 23, 1990, Abdullah was charged with receiving stolen property in violation of section 496, and it was also alleged pursuant to section 667.5, subdivision (b) that he had served a prison term on a previous conviction for residential burglary, and had not been free from custody for five years.

In municipal court on November 2, 1990, Abdullah entered a plea of guilty to the section 496 charge on condition the section 667.5, subdivision (b) enhancing allegation be struck. Abdullah asked that a sentence pursuant to section 1170.9 ² be ordered if possible, and was informed also that a commitment to CRC was possible. After accepting the plea, the court directed the probation department to investigate the possibility Abdullah could receive a sentence pursuant to section 1170.9.

At sentencing on November 30, 1990, the court told Abdullah a section 1170.9 commitment was not possible, imposed the middle term of two years for the section 496 conviction, and suspended criminal proceedings for an examination to determine if Abdullah was a drug addict or in imminent danger of becoming such.

After finding Abdullah was an addict, on December 12, 1990, he was ordered committed to CRC. On May 28, 1991, an order was made, directing Abdullah be returned for imposition of sentence, following Abdullah's exclusion from CRC because of his history of excessive criminality.

On June 21, 1991, the court imposed the two-year sentence earlier ordered. Abdullah's request he be granted credits under section 2933 for the CRC time on a "one for one," rather than a "two for one" basis was denied. Timely notice of appeal was thereafter filed.

DISCUSSION

I. SECTION 2933 CREDITS FOR TIME AT CRC

Abdullah first asserts that he should have been granted "worktime" credits under section 2933 ³ for the five-month period that he spent at CRC prior to his exclusion therefrom, during which time Abdullah worked eight hours a day regularly, and received high marks from his supervisors. He relies upon In re Mabie (1984) 159 Cal.App.3d 301, 205 Cal.Rptr. 528 for the proposition that while these credits are not available to those persons who are accepted by CRC, because he was excluded from CRC, they should be available to him.

In the cited decision, Division Two of this court resolved the question of whether equal protection required providing CRC committees, as well as state prison inmates, with "worktime" credits pursuant to section 2933. The court rejected Mabie's claim, finding "a compelling justification for limiting section 2933 worktime credits to state prison inmates." (In re Mabie, supra, 159 Cal.App.3d at p. 308, 205 Cal.Rptr. 528.) Abdullah now argues these and other decisions "though not directly on point, indicated that appellant should have been awarded the credits because of his right to equal protection under the law." Not so.

Abdullah attempts to distinguish the holding in Mabie from his situation because Abdullah was excluded from CRC. The distinction cannot be supported. With respect to equal protection challenges, "unless a statute impairs fundamental rights or involves an inherently suspect classification, 'legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.' [Citations.]" (Del Monte v. Wilson (1992) 1 Cal.4th 1009, 1014, 4 Cal.Rptr.2d 826, 824 P.2d 632.)

Whatever the length of time actually served at CRC, the distinction between those receiving punishment by incarceration in state prison upon conviction of a crime and those receiving treatment and rehabilitation for narcotics addiction at CRC is "rationally related to a legitimate state interest" and thus justifies the denial of worktime credits to Abdullah. Abdullah was not at any time prior to June 21, 1991, a person "sentenced to state prison" within the meaning of section 2933, and thus its provisions are not applicable to the period he spent at CRC prior to sentencing. Insofar as Abdullah relies on reasoning by analogy to other cases involving CRC commitments, those cases are not controlling. There was no error here.

II. SECTION 1170.9 PLACEMENT AS A VIETNAM COMBAT VETERAN

Abdullah next argues the trial court failed to consider the option of federal custody for him, instead of a commitment to state prison, because of (1) his status as a Vietnam combat veteran, and (2) his psychological and narcotics problems, which are asserted to have been occasioned by his service in Vietnam. We find this argument to be without foundation insofar as there is asserted any abuse of discretion by the trial judge.

This court has recognized "the strong legislative concern for narcotic addicts whose drug dependence or other severe psychological malfunctions relate to combat stress incurred by the unique military and social pressures imposed on our service personnel as a result of Vietnam service is evident on the face of the statute. Providing these persons with a specialized federal treatment program while they serve their prison terms permits specialized analysis and care in a setting specifically designed to maximize the benefits of treatment by professionals trained to cure drug dependency and other problems by treating their underlying cause, the emotional trauma of Vietnam combat service." (People v. Ruby (1988) 204 Cal.App.3d 462, 468, 251 Cal.Rptr. 339.)

As another court has recognized, "the language of section 1170.9 is mandatory rather than permissive. While the statute does not require the sentencing judge to choose federal incarceration for convicted Vietnam veterans, it does state that the judge 'shall consider ' whether the defendant meets the requirements for eligibility under that section." (People v. Bruhn (1989) 210 Cal.App.3d 1195, 1199, 259 Cal.Rptr. 6, italics in original.) However beneficent the purpose, the reality facing Vietnam combat veterans suffering "substance abuse or psychological problems resulting from that service" remains harsh.

In this case, the probation officer's report noted that Abdullah "did not mount a defense in this case but rather pled early, with the intention that he might be committed to a Federal facility, which currently have the best drug programs around. [Abdullah] felt he would qualify for this program pursuant to Section 1170.9 of the Penal Code which allows federal custody for Vietnam veterans in lieu of state prison." The report goes on to state that when the Western Regional Office of the Federal Bureau of Prisons was contacted, however, it was discovered that section 1170.9 was "an unenforceable law" because no programs or statutes exist providing for the receipt and custody of convicted state felons by Federal authorities.

A condition of sentencing pursuant to section 1170.9 is, of course, "that the trial court shall make sure, before imposing sentence, that federal correctional authorities are ready, willing, and able to receive defendant for service of his term of incarceration." (People v. Lara (1984) 155 Cal.App.3d 570, 575, 202 Cal.Rptr. 262.) Whether there is a possibility of such a custody choice depends on whether federal correctional authorities have the authority to receive persons such as Abdullah. In the absence of such authorization, section 1170.9 is a nullity, however well-intentioned. We must therefore determine the foundational question of whether "appropriate federal programs" exist.

In their brief in support of the judgment below, the People relied upon the representation in the cited probation officer's report "that there was no federal program available." We requested the Attorney General to provide the court with appropriate documentation in support of this assertion, and he has done so. ⁴ As is apparent from the response, insofar as section 1170.9's laudable purpose has been frustrated by the lack of necessary implementing federal legislation, the statute is beneficent but meaningless. The possibility held out by the statute, of a federal rehabilitative commitment in lieu of a state prison commitment, is illusory. ⁵

In the absence of any determination that section 1170.9 is illusory, appellate courts have responded to futile requests, such as the remands ordered in several cases where, as here, failure to consider a section 1170.9 placement is asserted. (People v. Bruhn, supra, 210 Cal.App.3d at pp. 1200-1201, 259 Cal.Rptr. 6; People v. Ruby, supra, 204 Cal.App.3d at p. 469, 251 Cal.Rptr. 339; People v. Enriquez (1984) 159 Cal.App.3d 1, 7, 205 Cal.Rptr. 238; People v. Galvan (1984) 156 Cal.App.3d 144, 146-147, 202 Cal.Rptr. 594; People v. Lara, supra, 155 Cal.App.3d at pp. 576-577, 202 Cal.Rptr. 262.) Until such time as "federal law authorizes the receipt" into "appropriate federal programs" of Vietnam combat veterans convicted of felony, which...