People v. Ramirez

• Decision Date: 24 May 1977
• Docket Number: Cr. 29240
• Citation: 138 Cal.Rptr. 546,70 Cal.App.3d 37
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lawrence J. RAMIREZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 546

138 Cal.Rptr. 546

70 Cal.App.3d 37

The PEOPLE, Plaintiff and Respondent, v. Lawrence J. RAMIREZ, Defendant and Appellant.

Cr. 29240.

Court of Appeal, Second District, Division 3, California.

May 24, 1977.

For Opinion on Hearing, see 158 Cal.Rptr. 316, 599 P.2d 622.

Rowan K. Klein, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., and Robert F. Katz and Stephen M. Kaufman, Deputy Atty. Gen., for plaintiff and respondent.

FORD, Presiding Justice.

On October 8, 1970, appellant Lawrence J. Ramirez was convicted of second degree burglary in violation of Penal Code section 459 after he pleaded not guilty. (Case No. A 254109.) On January 14, 1971, in a separate case (case No. A 419523) he pleaded guilty to possession of heroin in violation of former Health and Safety Code section 11500. ¹ In both cases appellant was adjudged a narcotic addict or in imminent danger of becoming one and was committed to the California Department of Corrections pursuant to Welfare and Institutions Code section 3051. He was released on outpatient status in 1974.

On April 29, 1976, the Department of Corrections found that appellant was not a suitable subject for its program. The superior court discharged his commitment in each and ordered him returned to the court to resume criminal proceedings.

In case No. A 254109, at the hearing held pursuant to Welfare and Institutions Code section 3053, appellant argued that the procedures used by the California Rehabilitation Center (CRC) in excluding him from its program violated his constitutional rights. Appellant also climed that the person who signed the letter of exclusion did not have power to do so and that the director abused his discretion in excluding him ffom CRC. The trial court upheld the exclusion. On the date set for sentencing, the trial court granted appellant probation for a period of three years, the condition thereof being that he spend six months in the county jail, with probation to terminate upon the completion of county jail time. The burglary was deemed to be a misdemeanor. (Pen.Code, § 17.)

In case No. A 419523 appellant personally waived his constitutional rights to a hearing and the matter was submitted, pursuant to stipulation of counsel, upon the disposition in case No. A 254109. The court denied probation and sentenced appellant to state prison for the term prescribed by law, with credit for time theretofore spent in custody.

Appellant appeals from the orders in both cases excluding him from CRC (Code Civ.Proc., § 904.1, subd. (b); People v. Peoro, 56 Cal.App.3d 35, 39, 128 Cal.Rptr. 130) and from the judgment in case No. A 419523 (Pen. Code, § 1237, subd. (1)). He contends that (1) he was denied due process in the exclusion from CRC; (2) the trial court abused its discretion in sentencing him in case No. A 419523; and (3) the exclusion from CRC which was based on the letter of April 7, 1976, is invalid.

Discussion

1. Due Process Violation.

Appellant contends that the procedures used to exclude him from CRC violated due process of law principles enunciated in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. We have examined the CRC exclusion procedures and, for the reasons set forth below, we have determined that they do not violate due process.

Welfare and Institutions Code section 3053 provides as follows: 'If at any time following receipt at the facility of a person committed pursuant to this article, 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.' After an individual has been 'excluded' from CRC, he or she is entitled to a hearing in the superior court. The court, upon request of the defendant, must review the director's administrative action in excluding the defendant from the program to determine whether the director abused his discretion. (People v. Wisdom, 47 Cal.App.3d 482, 488, 120 Cal.Rptr. 745; People v. Morgan, 21 Cal.App.3d 33, 38, 98 Cal.Rptr. 165.) '[T]he judge has no expertise to decide, and the statute does not assume that he will decide, that the defendant, in fact, is a fit subject for commitment and treatment, judged either by his past record or by his ability . . . to respond to treatment; the judicial decision is merely that, as far as the court's limited knowledge about defendant, and the judge's nonexpert opinion, permit, it is worthwhile to try the rehabilitation program in his case. But whether or not any given defendant can be treated with success is a fact which, in the last analysis, must be determined not by judges but by people trained in that field and actually engaged in the treatment process.' (People v. Marquez, 245 Cal.App.2d 253, 256, 53 Cal.Rptr. 854, 857.)

Appellant asserts that the due process principles of morrisey v. Brewer, supra, must be applied to these procedures. In Morrissey the United States Supreme Court held that a parolee threatened with revocation of parole was entitled to a prerevocation hearing held near the site of the alleged violation, followed by a formal revocation hearing before a neutral and detached body (408 U.S. at pp. 486-487, 489, 92 S.Ct. 2593, 33 L.Ed.2d at pp. 497-498, 499), each including minimum requirements of due process. In order for these principles to be applied, the interest of an individual in the matter of exclusion from CRC must be embraced within the concept of 'liberty' protected by the Fourteenth Amendment. (See Morrissey v. Brewer, supra, 408 U.S. at p. 482, 92 S.Ct. 2593, 33 L.Ed.2d at p. 495; Wolff v. McDonnell (1974) 418 U.S. 539, 556-557, 94 S.Ct. 2963, 41 L.Ed.2d 935, 951; In re Bye, 12 Cal.3d 96, 100-101, 115 Cal.Rptr. 382, 524 P.2d 854.)

Several courts have considered whether similar interests are entitled to due process protection. The California Supreme Court in In re Bye, supra, 12 Cal.3d 96, 115 Cal.Rptr. 382, 524 P.2d 854, held that an individual who had been committed to CRC as a narcotics addict, subsequently granted outpatient status, and thereafter threatened with the revocation of such status pursuant to Welfare and Institutions Code section 3152, ² was entitled to due process protection. ³ The court stated that the status of an outpatient is similar to that of a parolee. Each 'has relied on the state's promise that his conditional liberty will not be revoked unless he fails to abide by the conditions of his release and he is obligated to control his conduct accordingly.' (12 Cal.3d at p. 102, 115 Cal.Rptr. at p. 858, 524 P.2d at p. 386; see also Note, Control and Treatment of Narcotic Addicts: Civil Commitment in California (1969) 6 San Diego L.Rev. 35, 45.)

Respondent relies on three Court of Appeal decisions, all decided prior to Bye, to support the proposition that due process procedures need not be afforded prior to the hearing in the superior court. In People v. Pruett, 31 Cal.App.3d 1, 4, 105 Cal.Rptr. 204, the court held that Morrissey requirements of due process did not apply where a CRC inpatient was returned to the superior court for further criminal proceedings. The court stated that revocation of parole or probation involves situations where an individual has been granted a 'qualified' liberty. '[A] person committed to the Rehabilitation Center has not been granted any liberty--qualified or unqualified. He has been subjected to incarceration, in a security institution.' (Id. at p. 4, 105 Cal.Rptr. at p. 206.) The court specifically refrained from determining '[w]hether Morrissey would apply to a return, under section 3152 of the Welfare and Institutions Code, of persons previously granted 'out-patient status' under section 3151'. (Id. at p. 4, fn. 2, 105 Cal.Rptr. at p. 206.)

The same court determined that Morrissey procedures were inapplicable where an outpatient was returned to the superior court after he pleaded guilty to a burglary committed while he was on outpatient status. (People v. Gifford, 38 Cal.App.3d 89, 90-91, 113 Cal.Rptr. 112.) Since his conviction rendered him ineligible for further commitment as a matter of law, and the only issue which could have been raised was his identity, no purpose would have been served by requiring Morrissey procedures. (Id. at p. 91, 113 Cal.Rptr. 112.)

Finally, in People v. Hillock, 39 Cal.App.3d 36, 113 Cal.Rptr. 823, the court held that Morrissey procedures did not apply where an outpatient was excluded from CRC. The court noted that '[t]he action of the superintendent is not to be compared with that of a board in revoking parole, or of a court in revoking probation; it is more nearly analogous to that of a probation officer in recommending that probation be revoked, which action is followed . . . by a hearing before the court, wherein the defendant has the opportunity to appear, to confront and cross-examine the witnesses against him, and to testify in his own behalf.' ⁴ (Id. at pp. 38-39, 113 Cal.Rptr. at p. 824; see also Ingram v. Rees (N.D.Cal. 1976) 407 F.Supp. 226, 227.)

Appellant asserts that these cases are no longer valid since the Supreme Court's decision in In re Bye and he relies on People v. Rivera, 64 Cal.App.3d 644, 134 Cal.Rptr. 692, for this position. In Rivera the individuals were released on outpatient status from CRC and failed to report to their respective parole agents for over a year. When an individual has not been heard from for over a year, the policy of CRC was to recommend resumption of criminal proceedings without considering the facts of the individual...