People v. Arciga

if the Director determines the outpatient portion of the program is likely to be interrupted prior to the patient-inmate’s ‘cure’ and safe return to society?” So stated, the focus of our inquiry shifts to the program’s purposes, and the effect of multiple factors which the Director must consider in such cases. Citizenship of the patient-inmate is then reduced to but one of those factors.

Program Purposes

Section 3000 provides: “It is the intent of the Legislature that persons addicted to narcotics, or who by reason of repeated use of narcotics are in imminent danger of becoming addicted, shall be treated for such condition and its underlying causes, and that such treatment shall be carried out for nonpunitive purposes not only for the protection of the addict, or person in imminent danger of addiction, against himself, but also for the prevention of contamination of others and the protection of the public. Persons committed to the program provided for in this chapter who are uncooperative with efforts to treat them or are otherwise unresponsive to treatment nevertheless should be kept in the program for purposes of control. It is the further intent of the Legislature that persons committed to this program who show signs of progress after an initial or subsequent periods of treatment and observation be given reasonable opportunities to demonstrate ability to abstain from the use of narcotics under close supervision in outpatient status outside of the rehabilitation center provided for in Chapter 2 (commencing with Section 3300) of this division. Determinations of progress of persons committed to the program should be based upon criteria to be established by the director of Corrections with the advice of clinically trained and experienced personnel.

“The enactment of the preceding provisions of this section shall not be construed to be evidence that the intent of the Legislature was otherwise before such enactment.” (§ 3000.)

The importance of the outpatient participation phase is clear: “It is readily apparent that the Legislature intended to treat an outpatient as someone who is recovering from an illness. The purpose of the narcotic addict commitment program is not only to effect a temporary ‘cure’ of the patient’s addiction, but to rehabilitate him. [Citations.] ‘Experience with past programs of this nature has shown that a lack of followup supervision results in a high rate of relapse. [Citations.] The present “parole” (outpatient) system is designed to overcome this defect by providing the necessary followup through counseling, testing for narcotic use, and immediate return for further treatment if a relapse should occur. As pointed out in In re De La O (1963) supra, 59 Cal.2d 128 ,145, “These rules appear to be designed to meet the particular

needs of an addict in the later stages of the process of rehabilitation.”’ (In re Trummer [(1964)] 60 Cal.2d at p. 661 [ 36 Cal.Rptr. 281 , 388 P.2d 177 ].)” (People v. Myers (1972) 6 Cal.3d 811 , 817 [ 100 Cal.Rptr. 612 , 494 P.2d 684 ].)

Standard of Review

Section 3053 provides in pertinent part: “(a) 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.” (Italics added.)

We will assume the Director used the INS hold as an “other relevant reason” for returning each patient-inmate to the court.

Courts often find it appropriate to defer to medical judgments based upon relevant facts. The diagnosis of narcotics addiction, the appropriateness of treatment, and the ultimate opinions of cure and safe release are particularly matters involving expertise. Our state Supreme Court has referred to this deference in both aspects of the CRC program. On the entry side, the high court quoted the following from People v. Marquez (1966) 245 Cal.App.2d 253 , 256-257 [ 53 Cal.Rptr. 854 ]: “Thus ‘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. Hence, out of practical necessity, the statute leaves to the professional experts the final decision on whether or not treatment should be begun or be continued.’ (People v. Marquez (1966) 245 Cal.App.2d 253 , 256-257 [ 53 Cal.Rptr. 854 ].)” (In re Marks (1969) 71 Cal.2d 31 , 40, fn. 6 [ 77 Cal.Rptr. 1 , 453 P.2d 441 ].) The Marks court found the same rule of deference applicable to release conditions. (Ibid.)

However, the trial court’s authority to conduct the review “is not unfettered.” (People v. Morgan (1971) 21 Cal.App.3d 33 , 39 [ 98 Cal.Rptr. 165 ].) Generally, the expert judgment is free from attack unless the facts upon which it depends are shown to be nonexistent or have no legal relevance to the patient-inmate’s fitness to remain in the program. “Once it is established that relevant reasons in fact exist the question of whether or not they are so serious as to require rejection from the program is for the director and not for the court.” (People v. Toscano (1977) 69 Cal.App.3d 140 , 152 [ 137 Cal.Rptr. 893 ].)

Because of the “deferential abuse-of-discretion” standard of judicial review, the Director is required to provide the patient-inmate with certain due process rights. (People v. Ramirez (1979) 25 Cal.3d 260 [ 158 Cal.Rptr. 316 , 599 P.2d 622 ].) These rights are somewhat limited because the Director’s decision is “evaluative in nature and based on his specialized subjective judgment; that judgment depends on consideration of a host of intangible factors rather than on the existence of particular and contestable facts.” (Id., at p. 275.) The Ramirez requirements are designed to help assure the Director acts upon valid information.

Other Relevant Reasons

One authority has characterized “other relevant reasons” recognized by the courts: “(1) an escape risk, (2) a confirmed and aggressive sexual deviate, (3) mentally ill or defective, (4) senile, (5) handicapped by a language barrier, (6) an arsonist, or (7) one who ‘has been previously exposed to therapy and rehabilitation programs without significant gains.’250” (Belton, Civil Commitment of Narcotics Addicts In California: A Case History of Statutory Construction (1968) 19 Hastings L.J. 603 , 652.)

Footnote 250 of the quoted passage provides: “250Attachment to letter from Walter Dunbar, Director of Corrections, dated September 6, 1966, printed as appendix to Alternative Disposition for the Narcotic Addict, address by Roland W. Wood, Superintendent of the California Rehabilitation Center, Sentencing Institute for Superior Court Judges, March 17-18,1967.”

Our research has uncovered additional relevant reasons: character defect (People v. Hankins (1982) 137 Cal.App.3d 694 , 698, fn. 6 [ 187 Cal.Rptr. 210 ]); use of drugs while on release (People v. Blackwell (1975) 45 Cal.App.3d 804 , 810-811 [ 119 Cal.Rptr. 768 ]); recent violence and proven gang affiliation (People v. Garcia (1978) 78 Cal.App.3d 247 , 249 [ 144 Cal.Rptr. 176 ], cert. den. 439 U.S. 873 [ 58 L.Ed.2d 186 , 99 S.Ct. 208 ]); escape and absence for a period of one year (People v. Quintana (1977) 69 Cal.App.3d 178 , 180 [ 138 Cal.Rptr. 1 ]); inability to participate due to marginal intelligence and unwillingness (People v. Marquez, supra, 245 Cal.App.2d at p. 257).

In People v. Hernandez, supra, 10 Cal. App.3d 646 , an INS detainer was placed on the patient-inmate after the court found him eligible for CRC. The trial court denied his application for judicial recommitment and sentenced him to prison. (Id., at p. 646.) In affirming the judgment, the Hernandez court held: “ [P]ending deportation would clearly relate to the party’s ‘fitness for “confinement or treatment in a rehabilitation facility,” ’ within

the standard of People v. Hannagan [(1967)] 248 Cal.App.2d 107 , 111 [ 56 Cal.Rptr. 429 ], since the program depends on continued availability for treatment. Also pending deportation would effect the party’s ability ‘to participate either in the educational or therapeutic programs at the rehabilitation center,’ within the standard of People v. Marquez, supra, 245 Cal.App.2d 253 , 257, since obviously defendant would not be able to participate in programs at the rehabilitation center when he is deported. The rehabilitation program contemplates an extended period of institutional and outpatient treatment. The law contemplates a seven-year commitment, and a minimum of six months spent as an inpatient, with the addict then being placed on outpatient status (Welf. & Inst. Code, §§ 3151, 3152, 3201), and pending deportation makes this program impossible. Clearly it is a relevant reason for a person’s return.” (Hernandez, supra, at p. 649.) The court also analogized an INS detainer to a hold placed on a patient-inmate whose parole has been cancelled. A finding that parole revocation constitutes an “other relevant reason” has been upheld on appeal. (Id., at pp. 649-650.)

In People v. Hames (1975) 54 Cal.App.3d 40 [ 126 Cal.Rptr. 459 ], the same court which wrote Hernandez held a detainer placed upon a defendant by a sister state was a sufficiently relevant reason to warrant exclusion from CRC. (Id., at pp. 42, 44.) The court was not impressed by the fact the out-of-state detainer was later withdrawn. It was enough that the hold existed at the time the Director used it as the sole reason for exclusion. (Id., at p. 44.) Again, as in Hernandez, the court examined the accuracy of the facts before the Director and found no abuse of discretion.

Here, it is uncontroverted the holds were properly placed. We cannot presume the Director, when reviewing these cases, considered the holds with complete disregard for the totality of the circumstances involved, including the “offense and offender.” Instead, we presume the Director considered the illegal alien status only as it related to successfully completing the entire program. The Hernandez court made the same assumption. (See, e.g., People v. Superior Court (Martin) (1982) 132 Cal.App.3d 658 , 665 [ 183 Cal.Rptr. 563 ].)

Whether a patient-inmate will be in the country during the noncustodial outpatient period has an obvious relevance to the viability of the program. In this case and many others, deportation is not a matter of certainty, but one of probability. Whether the Director properly may emphasize the likelihood of deportation would depend on where a given case fits along this spectrum of probability. Certainly a bare possibility of deportation, as in the case of a legal alien, would be too speculative to deserve serious consideration. Similarly, the fact of certain deportation would be crucial.

In the present case, we are faced with circumstances presenting a number of factors, some being more relevant to fitness than others. We begin with alienage, proceed to illegal alien status, then to the consideration of the commission of one or more deportable offenses, and finally find ourselves faced with placement of an INS hold.

The importance of the INS holds in these consolidated cases, however, is not to be minimized. Parole “holds,” for example, have been a familiar event in criminal law practice. A hold constitutes “advice” from one agent with authority to another such agent. The “advice” is an expression of an intent to exercise a governmental right to the physical custody of the defendant at the earliest proper time. (In re Law (1973) 10 Cal.3d 21 , 24 [ 109 Cal.Rptr. 573 , 513 P.2d 621 ].) It has serious consequences, including the refusal of bail in some cases. (Id., at p. 26.)

In California, the Supreme Court has noted the adverse consequences of parole revocation detainers, including the effect on rehabilitation efforts. Therefore, an inmate facing parole revocation has been afforded a limited opportunity to require the Adult Authority to conduct revocation hearings with due diligence while the current confinement continues, instead of awaiting release from present commitment. (In re Shapiro (1975) 14 Cal.3d 711 [ 122 Cal.Rptr. 768 , 537 P.2d 888 ].)

An INS “hold” usually appears in the form of a notice to the present custodian that the defendant or inmate is subject to deportation. The custodian is asked to accept the notice as a detainer, and requested to notify the INS prior to release “in order that a decision could be made as to whether appellant would be placed under deportation proceedings.” (Argiz v. United States Immigration (1983) 704 F.2d 384 , 386.)

In the Argiz case we find facts and contentions similar to those in the present case. Argiz entered the United States fraudulently, a fact the United States Supreme Court has treated as entry without inspection. (Reid v. INS (1975) 420 U.S. 619 [ 43 L.Ed.2d 501 , 95 S.Ct. 1164 ].) Argiz was sentenced to a six-year prison term for robbery. He contended an INS detainer placed against him adversely affected his rehabilitation program. He sought relief under the constitutional right to speedy trial, and pursuant to the Interstate Agreement on Detainers. (18 U.S.C. appen. § 2, art. 111(a); see §§ 1389-1389.8 for the codification of the agreement in California.)

The court found no Sixth Amendment violation and no statutory basis for relief—the INS hold not being notice of pending criminal charges in another jurisdiction. California similarly interprets the detainer statute. (In re Gilchrist (1982) 134 Cal.App.3d 867 , 870 [ 184 Cal.Rptr. 861 ].)

consider the nature of the crime and then surrounding circumstances, including the present'and past record of the defendant. ...” (People v. Borja (1981) 125 Cal.App.3d 758 , 763 [ 178 Cal.Rptr. 287 ].)

However, even this input is limited in narcotics cases. Section 1251(b)(2), 8 United States Code, excepts from its application any alien who is charged with being deportable under 8 United States Code section 1251(a)(ll), which broadly refers to drug addicts and those who are convicted of possessing or trafficking in illegal drugs and associated substances.

Other areas of federal law reflect a policy against allowing completion of state narcotic rehabilitation programs by addicted aliens. Although federal immigration authorities cannot deport an illegal alien until the imprisonment is terminated, “[p]aróle, probation, or possibility of rearrest or further confinement in respect of the same offense shall not be a ground for deferral of deportation.” ( 8 U.S.C. § 1252 (h).) The California procedure of suspending proceedings and placing the defendant on probation will not avoid this consequence: the plea of guilty or a finding of guilt which is in repose is treated as a conviction by federal authorities. Thus the defendant on “probation,” howsoever affected, will be subject to federal custody detainers. (Gutierrez v. Immigration and Naturalization Service (1963) 323 F.2d 593 , cert. den. 377 U.S. 910 [ 12 L.Ed.2d 179 , 84 S.Ct. 1171 ].)

The significance of the INS holds in the present case is even greater when viewed in conjunction with the nature of the offenses committed and the potential or actual addiction involved. In summary, therefore, we find the trial court was correct. The Director did not abuse his discretion in concluding the defendants were unlikely to complete the outpatient CRC program. As a result, under the circumstances before CRC and the sentencing courts, as to each defendant, there was no abuse of discretion.

Equal Protection

We need not reach the question of whether a hold based on alienage created an unconstitutional classification. Both patient-inmates were rejected for medical reasons based upon the totality of the circumstances presented in each of their respective cases. Alienage was but one factor existing in the circumstances upon which the decision to reject was based.

Nevertheless, we note article I, section 7, of the California Constitution, and the Fourteenth Amendment of the United States Constitution, require individuals similarly situated with respect to the law be treated the same. Legal aliens have been held to constitute a “discrete and insular minority” and a suspect class afforded the protection of strict scrutiny whether or not

The Ramirez court held a patient inmate was entitled, as a matter of due process, to a meaningful opportunity to respond to the grounds for exclusion before the final exclusion takes place. A meaningful opportunity to respond included: (1) receipt of a statement of grounds for exclusion; (2) access to information used by the director in reaching his decision; (3) notice of the right to respond; (4) the right to respond orally before a responsible official if the patient inmate so chooses; and (5) a written statement of final decision with reasons. (People v. Ramirez, supra, 25 Cal.3d at pp. 275-276.)

Appellate counsel misreads the record. Trial counsel was concerned with the written statement from CRC indicating Arciga’s case was considered “in absentia.” However, the Ramirez decision does not require “presence” at the time the final exclusion decision is made, only a right to meaningfully respond to the grounds for exclusion. Arciga presented no evidence showing he was not offered the opportunity to exercise the rights afforded him by Ramirez. Therefore, for purposes of this appeal, we must conclude the court was correct in ruling Arciga failed to carry his burden of proof on the Ramirez issue. If additional facts exist supporting Arciga’s position, they are better reviewed by writ of habeas corpus.

We affirm the judgment in each case.

Hanson (P. D.), Acting P. J., and Hamlin, J., concurred.