People v. Valenzuela

• Decision Date: 11 March 1981
• Docket Number: Cr. 4357
• Citation: 172 Cal.Rptr. 284,116 Cal.App.3d 798
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew Pena VALENZUELA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 284

172 Cal.Rptr. 284

116 Cal.App.3d 798

The PEOPLE, Plaintiff and Respondent, v. Andrew Pena VALENZUELA, Defendant and Appellant.

Cr. 4357.

Court of Appeal, Fifth District, California.

March 11, 1981.

Stephen J. Ringhoff, Modesto, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Vincent J. Scally and Garrett Beaumont, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

STONE, ^* Associate Justice.

Appellant was charged with a violation of sections 488 and 666 of the Penal Code, petty theft with two prior convictions. He was alleged to have stolen a coat from Gottschalk's Department Store in Merced on December 4, 1978. Trial proceeded by the court, a jury having been waived. Appellant was convicted of stealing the coat, and the court further found that appellant had served time in custody following two prior petty theft convictions, pursuant to Penal Code section 666. Appellant was sentenced to a probationary term of 24 months, with a condition that he serve 10 months in custody, with credit for one day of time served. Appellant does not challenge the instant petty theft conviction and no further discussion of facts surrounding that incident is necessary here.

The contentions raised concern the use by the trial court of prior petty theft convictions incurred by appellant in 1973 and 1975. He urges that neither falls within Penal Code section 666. We discuss appellant's particular arguments as follows:

I

DOES AN EARLIER SENTENCE FOR PETTY THEFT, IN WHICH THE ONLY TIME IN CUSTODY ORDERED WAS CREDIT FOR TIME SERVED, COME WITHIN PENAL CODE SECTION 666? YES.

Court of Appeal section 666 provides:

"Every person who, having been convicted of petit theft, grand theft, burglary, or robbery and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of petit theft, then the person convicted of such subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison."

On December 19, 1975, appellant entered a plea of guilty to the misdemeanor charge of petty theft (Pen.Code, § 488), and was granted probation for one year, on the condition that he serve 60 days in custody, that all but 7 days be suspended, and that appellant receive credit for time served. Although the record is not clear, we assume that the 7 days in custody had been served at the time the plea of guilty was made and the sentence imposed.

Appellant suffered another prior conviction in 1973 which followed a jury verdict of guilty on a petty theft charge. On April 3 of that year, following the recommendation of the probation officer, criminal proceedings were suspended and appellant was certified to the superior court pursuant to section 3050 of the Welfare and Institutions Code. After appropriate proceedings in the superior court, appellant was ordered committed to the Department of Corrections for confinement in the California Rehabilitation Center, upon a finding that he was addicted, or in imminent danger of becoming addicted, to narcotics. Following completion of the civil addict commitment, appellant was remanded back to the trial court for further proceedings. On April 2 1976, he was ordered to serve 10 days in jail with credit for time served pursuant to former Penal Code section 2900.6. ¹

Appellant argues that because former section 2900.6 compelled the sentencing judge in each prior instance to allow credit for time served, such a term of custody was not intended by the Legislature to be a term in a penal institution or imprisonment as a condition of probation, as defined by section 666. He contends that because the sentencing court has no choice but to allow a defendant credit for time served, such time served for presentence custody does not come within the purview of the section. Appellant has referred us to no authority for his claim, nor have we discovered any. Section 2900.6 existed at the time section 666 was enacted in 1976. The Legislature did not choose to except custody resulting from credit for time served from the effect of section 666. We believe that no such exclusion was intended. "The Legislature is presumed to know the existing law and have in mind its previous enactments when legislating on a particular subject." (Rosenthal v. Cory (1977) 69 Cal.App.3d 950, 953, 138 Cal.Rptr. 442.)

A county jail is a penal institution. (People v. James (1957) 155 Cal.App.2d 604, 612, 318 P.2d 175.) Each jail commitment was a condition of appellant's probation. We think it inconsequential whether the time in custody was served before or after sentencing. In either instance, imprisonment has been in a penal institution within the meaning of section 666. ²

II

IS THE CALIFORNIA REHABILITATION CENTER A PENAL INSTITUTION WITHIN PENAL CODE SECTION 666? YES.

Appellant next contends that his referral in 1973 to the California Rehabilitation Center (CRC) was not an imprisonment in a penal institution as defined in section 666. As noted earlier, upon conviction of petty theft, the trial court suspended proceedings and certified appellant to the superior court to determine eligibility under Welfare and Institutions Code section 3050 et seq. Appellant testified he was committed to CRC in April 1973 and released from CRC parole status in 1976.

There appears to be no authority responsive to the precise question posed by appellant. However, we hold that CRC is a "penal institution" within the meaning of Penal Code section 666, and that a person who has undergone a commitment to such an institution has "served a term" in a penal institution.

We begin by analyzing the provisions established by the Legislature for confining persons who are addicted to narcotics or, by reason of repeated use, are in danger of becoming addicted.

Welfare and Institutions Code section 3000 provides that treatment is to be nonpunitive but is to be conducted for the protection of the public. ³ In addition, committed persons who become uncooperative with treatment efforts are to be kept in the program for purposes of control. The responsibility for treating the addict is given by Welfare and Institutions Code section 3001 to the Department of Corrections. That department is directed to receive, control, confine, employ, educate, treat and rehabilitate the addict. ⁴ While the treatment is to be nonpunitive, the department has the responsibility of controlling and confining persons committed. Escape from a rehabilitation facility is treated as a crime in section 3002. ⁵

Similarly, Welfare and Institutions Code section 3305 provides for the custody of persons confined at CRC. ⁶ Such persons are to be treated in the same manner as prisoners in the state prison system for all purposes described in Part 3 of the Penal Code. Part 3 establishes the prisons, provides for their administration, regulates treatment of inmates, establishes the length of terms and allows certain time credits, defines offenses committed by inmates and establishes the system of parole.

Notwithstanding the nonpunitive nature of rehabilitation commitment, our holding that it constitutes a commitment to a penal institution is not novel. The Supreme Court has recognized that confinement in a narcotics rehabilitation facility has two purposes, treatment of the addict and protection of the public. "... the legislation was designed not only to treat them for addiction but to protect the public by the policies, program and parole provisions of the narcotic addicts act." (People v. Navarro (1972) 7 Cal.3d 248, 281, 102 Cal.Rptr. 137, 497 P.2d 481.)

Our courts have also recognized that, despite the civil nature of a commitment, it is punitive in that it involves deprivation of personal liberties entitling one so confined to the procedural safeguards of a criminal defendant. (People v. Thomas (1977) 19 Cal.3d 630, 637-641, 139 Cal.Rptr. 594, 566 P.2d 228.)

"Although the commitment procedures set up by the narcotics addict statutes are civil in nature (In re De La O, 59 Cal.2d 128, 156, 28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705), it is clear that the proceeding has some of the features pertinent to a criminal case in view of the facts that the state is the defendant's opponent, that the proceeding is commenced on petition of the district attorney (Welf. & Inst.Code, §§ 3100, 3100.6), that the defendant is entitled to be present at the hearing and to be represented by counsel at all stages of the proceeding (Welf. & Inst. Code, § 3104, that if he is financially unable to employ counsel he is entitled to appointed counsel (Welf. & Inst.Code, § 3104) and that his liberty is at stake. On the basis of these considerations, we have recognized the criminal features of the proceeding and held that persons involuntarily committed to the program have the right to a free transcript on appeal, a rule ordinarily applied in criminal cases. (People v. Victor, 62 Cal.2d 280, 288-289, 42 Cal.Rptr. 199, 398 P.2d 391.)

"Whether any particular rule of criminal practice should be applied in a narcotic addict commitment proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding." (People v. Moore (1968) 69 Cal.2d 674, 681, 72 Cal.Rptr. 800, 446 P.2d 800, overruled on other grounds in People v. Thomas, supra, 19 Cal.3d at p. 641, fn. 8, 139 Cal.Rptr. 594, 566 P.2d 228.)

Consideration of physical aspects of confinement for narcotics rehabilitation is an approach used by the courts to determine the effect of such a commitment.

"... if the court finds that a person is addicted to narcotics or in imminent danger of addiction it has no option but to order him committed 'to the custody of the Director of Corrections for confinement in' the California...