People v. Miller

• Decision Date: 04 August 1967
• Docket Number: Cr. 12673
• Citation: 253 Cal.App.2d 224,61 Cal.Rptr. 155
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert L. MILLER, Defendant and Appellant.

Page 155

61 Cal.Rptr. 155

253 Cal.App.2d 224

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert L. MILLER, Defendant and Appellant.

Cr. 12673.

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

Aug. 4, 1967.

Clifford B. Scherer for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci and George R. Nock, Deputy Attys. Gen. for respondent.

LILLIE, Associate Justice.

Defendant, on parole from the state prison of a prior felony conviction, was charged with the sale of heroin (§ 11501, Health & Saf. Code). The cause was submitted on the transcript of the testimony taken at the preliminary hearing; additional testimony was taken. The trial court found defendant guilty. Thereafter on February 17, 1966, upon defendant's request, criminal proceedings were adjourned and the case was certified to Department 95 for proceedings under section 3051, Welfare and Institutions Code. On March 8, 1966, an order was entered therein finding defendant was in imminent danger of becoming a narcotic addict and committing him to the Director of Corrections, California Rehabilitation Center. He was received at the Center on March 11, 1966, and on April 26, 1966, defendant's parole was revoked by the Adult Authority and he was ordered returned to the state prison. Thereafter on May 26, 1966, the Superintendent of the California Rehabilitation Center reported to the trial judge that he evaluated defendant as not a fit subject for treatment at the Center; on his certification defendant was returned to the superior court where the proceedings in Department 95 were dismissed (June 3, 1966) and criminal proceedings were reinstated. On June 22, 1966, defendant was sentenced to state prison; he appeals from the judgment.

Appellant's main point is that the trial court erred by imposing sentence at a time when he had been improperly rejected from the narcotics rehabilitation program. He says his rejection was improper because the superintendent's conclusion that he was not a fit subject for treatment 'was not based on excessive criminality or for other relevant reasons' and 'was made prior to the expiration of the sixty (60) day minimum period' as prescribed by section 3053, Welfare and Institutions Code.

Inasmuch as the record on appeal contains no documents indicating the superintendent's reason for concluding that defendant was not a fit subject for treatment at the Center or when defendant was rejected, and appellant's exhibits show only that he was committed to the Center on March 8, 1966, and his parole was revoked on April 26, 1966, on our own motion we have augmented the record with the superior court file to include the information necessary for a fair determination of this case. In his brief appellant has detailed certain facts concerning what he claims occurred between the time he was received at the Center and returned to the court, but inasmuch as they are not substantiated by even the augmented record, they are not properly before us. (People v. Parriera, 237 Cal.App.2d 275, 286, 46 Cal.Rptr. 835; People v. Carr, 229 Cal.App.2d 74, 76, 40 Cal.Rptr. 58)

The superior court file discloses these relevant matters. While a diagnostic study was made by 'a detailed and in depth study of (defendant), his case history and the total circumstances surrounding his case' and defendant's criminal history as far back as 1950 (including among other things numerous short term jail commitments, two long jail term commitments for possession of dangerous drugs, escape, twenty serious disciplinary episodes during institutional confinement and aggressive dangerous violence during parole) was reviewed, the report of the superintendent, California Rehabilitation Center, dated May 26, 1966, does not refer to any tests or treatment given to defendant while at the Center. It is also obvious that while the superintendent made his report evaluating defendant's unfitness for treatment and certified him to be unfit on May 26, 1966 (more than sixty days after defendant was received at the Center (March 11, 1966)), the determination that defendant was not a fit subject for the California Rehabilitation Center was actually made by him sometime prior to the expiration of the 60-day period, more probably on or before April 8, 1966, when defendant's case was referred to the California Adult Authority. The staff recommendation, Adult Authority, dated April 8, 1966, reveals and quotes from the superintendent's conclusion that defendant was not a fit candidate for treatment at the Center. In any event, the Authority on April 26, 1966, revoked defendant's parole and ordered him returned to the state prison; one of the factors considered by the Authority was defendant's rejection by the California Rehabilitation Center. Finally, it is clear that the superintendent's conclusion that defendant was not fit for treatment and the program at the Center, based on defendant's lack of amenability and motivation, unwillingness or inability to profit from therapy and rehabilitative programs and need for more control and closer supervision than the Center can provide, was transmitted to the California Adult Authority before defendant's parole was revoked.

It is true that before the sixty days expired the superintendent concluded that defendant was not a fit subject for confinement or treatment at the California Rehabilitation Center, and, as in In re Swearingen, 64 Cal.2d 519, 50 Cal.Rptr. 787, 413 P.2d 675, after a diagnostic study and the superintendent's conclusion, defendant was sent to another facility for a parole hearing by the Adult Authority. Defendant, who was given no tests or treatment at the Center and who was rejected for treatment on April 8, 1966, less than thirty days after his admission to the Center, was prematurely rejected from the rehabilitation program. (In re Swearingen, 64 Cal.2d 519, 521, 50 Cal.Rptr. 787, 413 P.2d 675; § 3053, Welf. & Inst. Code.) However, within the 60-day period defendant's parole was revoked and he was returned to prison on April 26, 1966. The reports before the Adult Authority at the time of its consideration of defendant's parole indicate that while it knew of defendant's rejection from the Center and indeed received the case through referral by the superintendent, his rejection was by no means the sole reason for the revocation of parole. Defendant's extensive criminal record and confinement history, together with his conduct both during confinement and on parole appear to have been the main reasons for the action of the Adult Authority.

The Adult Authority has the full and unfettered power to revoke a parole and order a prisoner on parole returned to prison (§ 3060, Pen.Code); it is limited by no statutory provision...