People v. McCuiston

• Decision Date: 05 December 1966
• Docket Number: 5528,Cr. 5466
• Citation: 246 Cal.App.2d 799,55 Cal.Rptr. 482
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Montie Ray McCUISTON, Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Appellant, v. Montie Ray McCUISTON, Defendant and Respondent.

Page 482

55 Cal.Rptr. 482

246 Cal.App.2d 799

PEOPLE of the State of California, Plaintiff and Respondent, v. Montie Ray McCUISTON, Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Appellant, v. Montie Ray McCUISTON, Defendant and Respondent.

Cr. 5466, 5528.

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

Dec. 5, 1966.

Rehearing Denied Dec. 23, 1966.

Hearing Denied Feb. 1, 1967.

Edwin R. Baltimore, Walnut Creek (under appointment of the Court of Appeal, First Appellate District), Atty., for appellant in Cr. 5466.

R. Donald Chapman, Public Defender, County of Santa Clara, San Jose, for respondent in Cr. 5528.

Thomas C. Lynch, Atty. Gen., John T. Murphy, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent in Cr. 5466.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., William D. Stein, Louise H. Renne, Deputy Attys. Gen., San Francisco, for appellant in Cr. 5528.

MOLINARI, Justice.

On this appeal two cases involving Montie Ray McCuiston have been consolidated. One (1 Crim. 5466) is an appeal by defendant from the judgment of conviction for sale of narcotics (violation of Health & Saf.Code § 11501). The other (1 Crim. 5528) is an appeal by the People from a post-judgment order of the trial court modifying the judgment of conviction for possession of heroin (violation of Health & Saf. Code § 11500) by striking therefrom a prior felony conviction. ¹

In 1 Criminal 5466 defendant makes the following contentions: (1) The proceedings by which he was committed to the California Rehabilitation Center (the 'Center') were not held in compliance with the applicable Welfare and Institutions Code sections; (2) the finding by the Superintendent of the Center (the 'Superintendent') that defendant was not a fit subject for confinement or treatment at the Center is not supported by substantial evidence and therefore the Superintendent abused his discretion in determining that defendant was ineligible for treatment at the Center; and (3) the trial court, in sentencing defendant to a term in state prison after he had been returned to the court by the Center, should have credited defendant's sentence term with the time served by him at the Center. In 1 Criminal 5528 the sole contention of the People is that the trial court erred in striking the prior conviction from the judgment because despite the fact that no sentence had been imposed upon defendant in connection with the prior charge, a conviction occurred upon the finding of guilt.

Statement of the Cases

On April 5, 1963 defendant was found guilty by the court of a violation of Health and Safety Code section 11501 (sale of narcotics). Thereafter, pursuant to defendant's motion under Penal Code section 6451, ² the trial court appointed Drs. M. Shoor and N. Nomof to examine defendant for the purpose of determining whether he was a narcotic addict within the meaning of that section. On May 17, 1963 the doctors were sworn and examined by the court and in addition they submitted to the court the certificate of medical examiners which they both signed. On the same date the trial court found that defendant was a narcotic addict within the meaning of section 6451 and ordered him committed to the Director of Corrections for placement in the Center for a period not to exceed 10 years.

On February 4, 1965, while defendant was in outpatient status from the Center, he was indicted for having violated Health and Safety Code section 11502 (selling heroin to a minor). This indictment further charged a prior felony conviction, namely, a violation of Health and Safety Code section 11501. On March 24, 1965 defendant pleaded guilty to the lesser included offense of violating Health and Safety Code section 11500 (possession of heroin) and admitted the prior conviction. Accordingly, on May 5, 1965 the trial court entered judgment sentencing defendant to state prison for the term prescribed by law.

Thereafter, on September 3, 1965 the Superintendent of the Center, by letter to the trial court, certified that because of defendant's recent commitment to the state prison he was not a fit subject for confinement or treatment at the Center. Accordingly, on September 17, 1965 the trial court sentenced defendant to state prison for the term prescribed by law for his 1963 conviction and further ordered that this sentence run concurrently with that imposed for defendant's 1965 conviction for possession of heroin. On September 22, 1965 defendant filed his notice of appeal from this judgment.

Thereafter, in connection with his May 5, 1965 conviction, defendant on November 1, 1965 filed a petition for writ of error Coram nobis. Among the several grounds urged for relief in this petition defendant alleged that the prior felony conviction charged in the indictment leading to his conviction in May 1965 was not properly chargeable as a prior conviction since he was not actually convicted of a violation of Health and Safety Code section 11501 (the conviction which formed the basis of the prior felony charge) until he was sentenced to state prison on September 17, 1965. On December 10, 1965, as an alternative to granting defendant's petition for writ of error Coram nobis, the trial court modified the May 5, 1965 judgment by striking the prior felony conviction. It is from this order that the People appeal in 1 Criminal 5528.

The Commitment Proceedings

According to the provisions of former section 6451 the proceedings held pursuant to that section to determine if a defendant is a narcotic addict within the meaning of the section 'shall be conducted in substantial compliance with Sections 5353, 5053, 5054, and 5055 of the Welfare and Institutions Code.' ³ Defendant contends that since no witnesses were called either by the People or by defendant, the proceedings held in the instant case to determine if defendant was a narcotic addict did not comply with the provisions of former Welfare and Institutions Code section 5053 ⁴ (now Welf. & Inst.Code § 5564). While this section clearly allows for the presence of witnesses at a commitment proceeding, it does not require that witnesses be present or testify at the hearing except where they are so requested by the defendant. In the instant case since the record does not indicate that defendant requested the presence of witnesses at the commitment proceeding it is apparent that their absence did not vitiate the effectiveness of the proceedings. Defendant cites the cases of People v. Victor, 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391, and People v. Davis, 234 Cal.App.2d 847, 44 Cal.Rptr. 825, in support of his argument that the commitment proceedings held in the instant case were improper because of the failure of the trial court to call any witnesses. In Victor there was only one medical examiner present at the commitment proceedings whereas Welfare and Institutions Code section 5053 specifically required at least two. And in Davis the commitment was held to be improper because the doctors who had examined the patient signed their certificates prior to appearing in court rather than after their court appearance as specifically required by Welfare and Institutions Code section 5055.

In the instant case the clerk's minutes of the commitment proceedings reveal that the two doctors who had examined defendant pursuant to former section 6451 were present in court at the hearing, were sworn and examined by the court, and then signed the medical certificate and submitted it to the court. Accordingly, it is clear that these proceedings were held in substantial compliance with the appropriate Welfare and Institutions Code sections.

Abuse of Discretion on the Part of the Superintendent of the Center

Defendant contends that the Superintendent abused his discretion in determining that defendant was not a fit subject for treatment at the Center on the basis of defendant's 1965 conviction which resulted in his commitment to state prison and that, accordingly, it was error for the trial court to sentence defendant to state prison for the 1963 conviction without considering whether, in spite of the Superintendent's determination, defendant was nonetheless entitled to treatment at the Center. The basis of defendant's contention is that a subsequent conviction does not, by itself, support a determination of ineligibility for the rehabilitation program.

At the time the Superintendent certified to the trial court that defendant was no longer a fit subject for treatment at the Center and that his case should be referred to the court for further proceedings on the suspended criminal charges, section 6453, which authorized such a proceeding, provided as follows: 'If at any time after 60 days following receipt of a person at the facility, 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.' ⁵ The case of People v. Pate, 234 Cal.App.2d 273, 275--276, 44 Cal.Rptr. 462, held that the question of whether a person committed to the Center is a fit subject for treatment at the Center is addressed in the first instance to the sound discretion of the Director of Corrections and that his determination is reviewable by the trial court, which, upon finding that the Director has abused his discretion, may set aside such conclusion and direct the Director to carry out the court's order of commitment. In Pate, because the committing court, in imposing a prison sentence upon the defendant, believed that the Director's decision to reject the defendant was conclusive and that the court had no alternative other than to impose a prison sentence, the appellate court reversed the judgment only...