People v. Ruby

• Court: California Court of Appeals
• Writing for the Court: WORK; WOODWORTH
• Citation: People v. Ruby, 251 Cal.Rptr. 339, 204 Cal.App.3d 462 (Cal. App. 1988)
• Decision Date: 07 September 1988
• Docket Number: No. D006216,D006216
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lawrence S. RUBY, Defendant and Appellant.

Page 339

251 Cal.Rptr. 339

204 Cal.App.3d 462

The PEOPLE, Plaintiff and Respondent, v. Lawrence S. RUBY, Defendant and Appellant.

No. D006216.

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

Sept. 7, 1988.

Review Denied Dec. 8, 1988.

Denise M. Ducheny, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and Lilia E. Garcia, Deputy Atty. Gen., for plaintiff and respondent.

WORK, Associate Justice. ^*

Lawrence S. Ruby, a drug-addicted, decorated Vietnam combat veteran, appeals from a judgment convicting him of unlawfully possessing a controlled substance (HEALTH & SAF. CODE, § 11350¹, subd. (a)) with a prior possession conviction within the meaning of section 11370, subdivision (a). Ruby contends the trial court erred in believing it had no discretion to strike the section 11370, subdivision (a) allegation and grant him probation, and in failing to evaluate his amenability to serve his sentence in a federal correctional institution designed to treat drug-addicted Vietnam combat veterans as required by Penal Code section 1170.9. For the reasons which follow, we conclude the trial court erred in believing it had no discretion to strike the prior conviction allegation. We further find the record does not show the court fully evaluated whether it was appropriate to commit Ruby to federal confinement pursuant to Penal Code section 1170.9 in light of the substantial legislative concern for such placement where drug addiction is shown to be associated with post-combat trauma incurred by those who served in Vietnam. We remand for resentencing in accordance with our decision.

FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 1986, while Ruby was driving his truck, he was recognized by police officers as a known drug addict for whom there was an outstanding arrest warrant. They stopped him. Predictably, he exhibited physical symptoms of his addiction. He was nervous and shaking and had the usual addict's paraphernalia, a syringe cap, a spoon (burnt at the bottom), a thin belt, a cup of water, cotton swabs and matches in plain view and a bindle of cocaine in his pocket.

I THE TRIAL COURT HAD THE DISCRETION TO STRIKE THE SECTION 11370, SUBDIVISION (a) ALLEGATION

At sentencing, Ruby asked the trial court to exercise its discretion and strike the section 11370, subdivision (a) ² allegation in the furtherance of justice. (Pen.Code, § 1385.) ³ The trial court refused on the ground it had no discretion to employ the powers of Penal Code section 1385.

Penal Code section 1385 allows courts to dismiss or strike allegations which, if proven, would enhance punishment for alleged criminal conduct. (People v. Williams (1981) 30 Cal.3d 470, 483, 179 Cal.Rptr. 443, 637 P.2d 1029, citing People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.) The People contend section 11370, subdivision (a) precludes the court from striking or dismissing under Penal Code section 1385, relying on general language in Tanner, that suggests a court has no power to disregard prohibitions against probation grants where the statutory intent to curtail that judicial power is clear. Unlike the statute analyzed in Tanner, there is no express legislative intent either in the statutory language or its legislative history to preclude the exercise of judicial discretion under Penal Code section 1385. Thus, we are bound by the decisions of our Supreme Court permitting application of Penal Code section 1385 discretion in these circumstances. The precise provisions of section 11370 we now address were directly considered in its predecessor statute ( § 11715.6 repealed by stats. 1972, ch. 1407, p. 2987, § 2) in In re Cortez (1971) 6 Cal.3d 78, 84-89, 98 Cal.Rptr. 307, 490 P.2d 819. The Supreme Court unanimously held the precise prohibitory language relied on by the People here did not preclude granting a defendant's motion to strike the priors for the express purpose of avoiding the prohibition against probation in an appropriate case. The court recognized the statutory language "flatly prohibits probation" ( id. at p. 85, 98 Cal.Rptr. 307, 490 P.2d 819), but that the court was still empowered to strike the prior conviction and remove that probationary impediment. Seventeen years have passed since In re Cortez stated its proposition without any legislative response. (See also In re Banks (1971) 6 Cal.3d 91, 98 Cal.Rptr. 314, 490 P.2d 826, a companion case to In re Cortez addressing the same facts and issues.) In People v. Ruiz (1975) 14 Cal.3d 163, 167, 120 Cal.Rptr. 872, 534 P.2d 712, the Supreme Court remanded for resentencing a case factually identical to Ruby's, citing In re Cortez. The court stated that although defendant's prior narcotic conviction rendered him facially ineligible for probation under section 11370, subdivision (a), counsel's plea for probation at the sentencing hearing was in effect a motion to strike the prior and admit defendant to probation. The trial court had primarily denied the probation request due to the nature of defendant's current offense, i.e., possessing heroin for sale. However, on appeal defendant's conviction for possessing heroin for sale was modified to simple possession so that he then stood convicted of the exact current and prior crime as does Ruby now. The court then remanded the matter to the trial court for a new probation hearing in view of Ruiz's modified conviction, which was precisely the same as Ruby's; i.e., a conviction for possession with a prior narcotics conviction. Ruby, like Ruiz, has requested probation and moved to strike the allegation at sentencing, a matter the court in Ruiz states is within the court's discretion under Penal Code section 1385.

The People were apprised of the holdings in Ruiz and In re Cortez, but have not attempted to distinguish them to us on this appeal. At oral argument, they concede these authorities bind us under the rule promulgated in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, unless the present case is distinguishable. It is not and we are compelled to conclude the court erred in not exercising its discretion when ruling on Ruby's motion to strike his prior conviction. ( In re Banks, supra, 6 Cal.3d at p. 93, 98 Cal.Rptr. 314, 490 P.2d 826.) ⁴

II THE COURT FAILED TO EXERCISE THE DISCRETION REQUIRED BY PENAL CODE SECTION 1170.9

At sentencing, Ruby introduced evidence of a medical diagnosis showing he manifests post-traumatic stress syndrome resulting from his Vietnam combat service. He asserts this diagnosis triggers the Penal Code section 1170.9 ⁵ mandate that the court determine whether appropriate federal programs are available so that it may then exercise its discretion whether to order him to serve his prison sentence in that program rather than state prison.

Defendants who establish they were members of the United States military forces, served in combat in Vietnam and suffer from substance abuse as a result of that service may be committed to the custody of federal correctional authorities at the court's discretion. (People v. Enriquez (1984) 159 Cal.App.3d 1, 6, 205 Cal.Rptr. 238.) Here, although the court apparently found Ruby's military combat service in Vietnam resulted in a present post-traumatic syndrome, it did not commit him to a federal treatment program or even investigate to determine if one was available. Its failure to inquire into the availability of the federal program appears to have resulted from a misapprehension of counsel that probation would have to be granted before a commitment could be made. Although placement in the federal program is not mandated, the commitment is available specifically to persons who are not granted probation and would otherwise be imprisoned. (See People v. Lara (1984) 155 Cal.App.3d 570, 574, 202 Cal.Rptr. 262; People v. Galvan (1984) 156 Cal.App.3d 144, 145, 202 Cal.Rptr. 594.) Thus, the denial of probation does not preclude the court from considering this alternative. Moreover, there are many factors in this record which might justify such a placement. Ruby was a Vietnam combat veteran who was badly injured during service and who suffers from substance abuse diagnosed as causally related to his combat experience. The court received psychological reports stating Ruby's deep-seated emotional and drug problems stem from his combat service in Vietnam. One report specifically recommends Ruby for Post Traumatic Stress Disorder treatment at a federal facility designed specifically for Vietnam veterans. The report identified one such site at Menlo Park, California and stated the author, Dr. Jon Nachison, would identify other such facilities "around the country" on request. Thus, this is not a case in which our review assures us the trial court, had it exercised its discretion would have been justified only in rejecting a federal placement.

For the guidance of the trial court on remand we note Penal Code section 1170.9 requires it to consider three factors if it concludes Ruby has substance abuse or psychological problems resulting from combat service in Vietnam. First, does the defendant agree to such a commitment? Second, do appropriate federal programs exist? Three, is there a federal facility authorized to receive the defendant? Should each of the foregoing considerations be satisfied, the court must determine whether it is reasonable and constructive to order the alternative federal placement. We believe it should do so in the light of analogous policy considerations articulated in People v. Ortiz (1964) 61 Cal.2d 249, 37 Cal.Rptr. 891, 391 P.2d 163. There the Supreme Court, addressing the trial court's failure to commit a defendant to the California Rehabilitation Center emphatically stated that discretion vested in a trial court in determining whether to institute narcotics addiction commitments following conviction, "should...