People v. Munoz

• Citation: 51 Cal.App.3d 559,124 Cal.Rptr. 322
• Decision Date: 22 September 1975
• Docket Number: Cr. 1983
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Louis MUNOZ, Defendant and Appellant.

Page 322

124 Cal.Rptr. 322

51 Cal.App.3d 559

The PEOPLE, Plaintiff and Respondent, v. Joseph Louis MUNOZ, Defendant and Appellant.

Cr. 1983.

Court of Appeal, Fifth District, California.

Sept. 22, 1975.

Alan M. Caplan, San Francisco, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Charles P. Just and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GARGANO, Associate Justice.

Appellant, Joseph Louis Munoz, purports to appeal from his 1971 conviction of possession of heroin in violation of section 11500 (now section 11350) of the Health and Safety Code. He raises these points: that the evidence was insufficient to support the conviction; that he was represented, inadequately, by counsel; that the Director of Corrections improperly returned him to the superior court from the California Rehabilitation Center; that the trial court erred in terminating his commitment to the rehabilitation center without conducting an evidentiary hearing; and that he should be given credit for time served at the rehabilitation center.

On March 26, 1971, appellant, after jury trial in the Superior Court of Madera County, was convicted of possession of heroin. The court then suspended criminal proceedings and, pursuant to section 3051 of the Welfare and Institutions Code, instituted civil commitment proceedings to determine if appellant was addicted to narcotics or in imminent danger of addiction; when appellant was found not to be a narcotic addict or in imminent danger of addiction, he was returned to the criminal court; judgment was pronounced and sentence to state prison for the term prescribed by law was imposed; however, execution of sentence was suspended and appellant was placed on probation.

On October 27, 1971, a petition was filed in the superior court for the revocation of appellant's probation; appellant had been found in possession of heroin. Later, appellant admitted the possession and his probation was revoked; once again, criminal proceedings were suspended and civil commitment proceedings instituted to determine whether appellant was a narcotic addict or in imminent danger of becoming an addict.

On December 2, 1971, the court found appellant to be in imminent danger of becoming addicted to narcotics and committed him to the California Rehabilitation Center for treatment; six months later appellant was placed on outpatient status.

On March 21, 1973, appellant, after jury trial in the Madera County Superior Court, was convicted of a sale of heroin; on April 5, 1973, he was sentenced to state prison on that conviction for the term prescribed by law. Thereafter, the Director of Corrections decided that appellant was no longer a fit subject for treatment at the California Rehabilitation Center and ordered appellant returned to the superior court for further proceedings in this action.

On March 28, 1974, the superior court determined that appellant was not a fit subject for treatment at the California Rehabilitation Center and terminated appellant's civil commitment; like the Director of Corrections, the court found that because appellant had been sentenced to state prison on his 1973 conviction, he was not a fit subject for treatment at the center. On April 11, 1974, the court, in essence, revoked the suspension of execution of sentence and put into effect the original 1971 sentence of imprisonment; the court ordered the sentence to run concurrently with appellant's 1973 sentence. ¹

On August 9, 1974, this court reversed appellant's 1973 conviction (see People v. Munoz, 41 Cal.App.3d 62, 115 Cal.Rptr. 726); we take judicial notice that after the reversal, at the request of the district attorney, the charge involved in that conviction was dismissed by the superior court.

First, we dispose of the point as to just what this appeal brings before us to review.

The record shows that on May 24, 1971, sentence was imposed on the offense from which appellant now purports to appeal, However, the execution of the sentence was suspended and appellant was placed on probation; a judgment of conviction had been rendered from which an appeal could be taken. (People v. Arguello, 59 Cal.2d 475, 476, 30 Cal.Rptr. 333, 381 P.2d 5; People v. Howerton, 40 Cal.2d 217, 219, 253 P.2d 8; In re Phillips, 17 Cal.2d 55, 58, 109 P.2d 344.) Because appellant had the right to appeal at that time and raise all matters going to the validity of his 1971 conviction, and a because he failed to do so, he now cannot raise on this appeal claims of error occurring in the criminal trial, with the exception of the constitutional argument that he did not receive adequate representation by counsel. (People v. Glaser, 238 Cal.App.2d 819, 821--824, 48 Cal.Rptr. 427; see People v. Silva, 241 Cal.App.2d 80, 82--83, 50 Cal.Rptr. 243; see also People v. Howerton, supra, 40 Cal.2d 217, 220, 253 P.2d 8; People v. Vest, 43 Cal.App.3d 728, 731, 118 Cal.Rptr. 84; People v. Wright, 275 Cal.App.2d 738, 739, 80 Cal.Rptr. 335; People v. Matranga, 275 Cal.App.2d 328, 331, 80 Cal.Rptr. 313; People v. Valdez, 251 Cal.App.2d 573, 574, 59 Cal.Rptr. 627; People v. Howard, 239 Cal.App.2d 75, 79, 48 Cal.Rptr. 443.)

In any event, appellant was committed to the California Rehabilitation Center for treatment as a narcotic addict, and appellant made no attempt to appeal after that commitment; by then, section 1237 of the Penal Code had been amended to permit a defendant who had been committed for narcotics addiction to perfect an appeal wherein he could raise claims of error occurring in the criminal trial. (See People v. Murphy, 70 Cal.2d 109, 115, fn. 4, 74 Cal.Rptr. 65, 448 P.2d 945; People v. Garcia, 13 Cal.App.3d 486, 488--490, 91 Cal.Rptr. 671; cf. People v. Gonzales, 68 Cal.2d 467, 470--471, 67 Cal.Rptr. 551, 439, P.2d 655.) Were we to ignore appellant's failure to appeal from the judgment of conviction rendered at the time execution of the imposed sentence was suspended, we could not ignore his failure to perfect, in timely fashion, an appeal after his commitment for narcotics addiction.

It is clear that this appeal brings before us only the constitutional issue and the question as to whether the court erred in revoking appellant's commitment for narcotics addiction and in putting into effect the original 1971 sentence of imprisonment. We turn to those questions.

Appellant complains he received constitutionally inadequate representation because his trial counsel did not make, pursuant to section 1538.5 of the Penal Code, a motion to suppress the evidence of the heroin upon which his conviction was predicated. The arresting officer testified that as he drove by in his patrol unit he observed appellant and two other men standing on the sidewalk and that he saw appellant discard an object. The officer stopped his vehicle and got out; he stated that he found the object on the ground near the sidewalk and that it held five tightly rolled balloons, each of which appeared to contain heroin. Appellant in turn testified that the heroin found by the officer did not belong to him. In view of the officer's testimony and appellant's defense that the heroin found on the ground did not belong to him, it is apparent that counsel was not faced with a search and seizure problem and that a motion to suppress would have served no useful purpose. (See People v. Superior Court (MacLachlin), 271 Cal.App.2d 338, 342--343, 76 Cal.Rptr. 712.)

Appellant argues that his 1973 felony conviction did not support, per se, a determination of ineligibility for the rehabilitation program. Accordingly, appellant insists that the Director of Corrections improperly determined that appellant was no longer fit for treatment at the California Rehabilitation Center and that the court also erred in terminating the civil commitment because of his subsequent felony conviction.

Appellant ignores the fact that his 1973 conviction resulted in a sentence to state prison. It is settled that if a person who had been committed to the California Rehabilitation Center for treatment thereafter is convicted of a felony and sentenced to state prison, he becomes ineligible for treatment at the rehabilitation center because while in prison he is no longer available for such treatment and there is '. . . no provision in the law to transfer (a person who is serving a prison term) to the rehabilitation center.' (People v. Ballin, 66 Cal.2d 80, 82, 56 Cal.Rptr. 893, 894, 424 P.2d 333, 334; see also People v. Superior Court (Syvinski), 2 Cal.3d 527, 531--532, 86 Cal.Rptr. 83, 468 P.2d 211; People v. Gentry, 42 Cal.App.3d 444, 450, 116 Cal.Rptr. 869; People v. Vasquez, 16 Cal.App.3d 897, 900, 94 Cal.Rptr. 389; People v. McCuiston, 246 Cal.App.2d 799, 805, 55 Cal.Rptr. 482.)

However, while the court, in the first instance, correctly terminated appellant's civil commitment and then revoked the suspension of the execution of the sentence and put into effect the original 1971 sentence of imprisonment, we are faced with an unusual situation. As we have stated, appellant's commitment was terminated solely because his sentence to state prison after his 1973 conviction made him ineligible for treatment at the California Rehabilitation Center; this impediment was removed by the subsequent reversal of that conviction and the dismissal of the charge upon which that conviction was predicated. In retrospect, appellant was removed from a worthwhile rehabilitation program without any determination on the part of the Director of Corrections or the superior court that he was no longer a fit and proper subject for that program.

We have several choices.

First, we can hold that in retrospect the trial court erred interminating appellant's civil commitment. Accordingly, we would reverse the order revoking the suspension of the execution of the sentence, with directions to the lower court to vacate the order terminating appellant...