P. v. Dey

Filed 3/19/07 P. v. Dey CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Donald Carl Dey was convicted after a jury trial of manufacturing methamphetamine and possession of precursors with the intent to manufacture methamphetamine. (Health & Saf. Code,  11379.6, subd. (a), 11383, subd. (c)(1).) The trial court found defendant had sustained a prior controlled substance conviction. (Pen. Code,  1170.12; Health & Saf. Code,  11370.2.) The trial court found unusual circumstances and placed defendant on formal probation.

Six months later, defendant violated his probation by testing positive for methamphetamine. The trial court continued defendants probation and ordered defendant to complete the Well Ministry of Rescue program. Defendant, however, left the program without permission shortly before completing it. The trial court revoked defendants probation, released defendant on his own recognizance and ordered defendant to attend the Skyway House outpatient program and continue to comply with the previous terms of his probation.

At the May 3, 2005, disposition hearing on the probation violations, the court revoked probation and sentenced defendant to six years in state prison. The court then found that defendant had manufactured methamphetamine for personal use and was addicted to narcotics. The court suspended criminal proceedings and referred defendant to the California Rehabilitation Center (CRC).

Defendant signed a waiver form waiving his Welfare and Institutions Code section 3053 rights, including the right to appear in court should the CRC reject him for any legal reason. Defendant was subsequently excluded from the CRC. At a hearing with counsel, in the absence of defendant, the court vacated the civil commitment, reinstated the criminal proceedings and executed the previously suspended six-year state prison sentence.

On appeal, defendant contends the judgment must be reversed because he did not execute a valid waiver of his right to be present during any postexclusion criminal proceedings. He further argues that the waiver was not applicable because his exclusion from the CRC was not for a legal reason. We affirm.

BACKGROUND

Welfare and Institutions Code section 3053 provides for the return of a person committed to the CRC to the court in which the case originated for such further proceedings on the criminal charges as that court may deem warranted in the event the Director of Corrections concludes that the person in not a fit subject for confinement or treatment due to excessive criminality or other relevant reason. (Welf. & Inst. Code,  3053, subd. (a).)

At the May 3, 2005, disposition hearing on the probation violations, defendant signed a Waiver of WI 3053 Hearing as follows:

The Court having determined that should the defendant be rejected or disqualified from the California Rehabilitation Center program for any legal reason, the Court would not modify in any way the sentence imposed herein.

I hereby waive my rights under Welfare and Institutions Code section 3053 to be returned to the Butte County Superior Court for further proceedings on the criminal charges should I be excluded from the C.R.C. program for any legal reason.

I have discussed this waiver with my attorney and fully understand that should I be excluded from the C.R.C. program for any legal reason, the WI3051 civil proceedings will be terminated and the criminal proceedings reinstated without my returning by [sic] Butte County Superior Court, and that I will be transferred to a correctional facility to serve any remaining time on my sentence.

The trial court suspended criminal proceedings and referred defendant to the CRC. Defendant was excluded from the CRC on July 29, 2005. In a letter to the court, the CRC warden explained defendants exclusion as follows:

The case of Mr. Donald Dey has been reviewed for suitability for the Civil Addict Program. It is our evaluation that Mr. Donald Dey is not suitable because of his fear for his safety if he is housed at the California Rehabilitation Center. His situation cannot be accommodated within the program design of the Civil Addict Program, thereby making him unsuitable for participation in the program. His safety concerns have made it necessary to temporarily house him at the California Institution for Men. [] . . . []

On July 20, 2005, Mr. Donald Dey appeared before the Institution Classification Committee. After careful consideration of all pertinent case factors, the Institution Classification Committee acted unanimously to exclude Mr. Donald Dey from the Civil Addict Program because of his claims for his safety if he is housed at the California Rehabilitation Center. The Institution Classification Committee noted that Mr. Donald Dey alleges that he has been labeled as an informant by the inmate population at the California Rehabilitation Center. He now fears for his safety and is no longer suitable for open dormitory housing.

The decision is in compliance with Section 3053 of the Welfare and Institutions Code and I indeed view Mr. Donald Dey as unsuitable for the program because of his safety concerns, which cannot be accommodated within the program design of the Civil Addict Program, thereby making him unsuitable for participation in the program.

Defendant made no request for a hearing on the rejection at this time. At an appearance where defense counsel was present, the court reinstated criminal proceedings and executed the previously suspended state prison sentence. Thereafter, defendant sent a letter to the court claiming he wanted to be present at the hearing and did not remember signing any waivers of any kind.

DISCUSSION

Defendant makes numerous contentions attacking the Welfare and Institutions Code section 3053 waiver he executed on May 3, 2005. He first contends that the written waiver was invalid because there is no record that he had been properly advised of his right to be present at any postexclusion criminal proceedings. He bases his argument on the fact that the waiver form did not specifically set forth this right and the trial court did not orally advise him of this right. We reject this contention.

Defendant had been advised in writing at the time the complaint was filed of his right to be present at any subsequent hearings. Defendant indicated by his signature that he fully understood that right. Indeed, the record reflects that defendant exercised that right to be present at every proceeding thereafter until he signed the waiver form and was referred to the CRC.

Moreover, the language of the waiver form itself sufficiently advised defendant he otherwise had a right to be present at any postexclusion hearing. The waiver stated: I hereby waive my rights under Welfare and Institutions Code section 3053 to be returned to the Butte County Superior Court for further proceedings on the criminal charges should I be excluded from the C.R.C. program for any legal reason. (Italics added.) In waiving such rights, it is necessarily implicit that one has those rights to waive, and is, therefore, sufficiently equivalent to an advisement of such rights. Defendant signed this waiver, having acknowledged that he had discussed it with his attorney and fully under[stood] that, should he be excluded, criminal proceedings would be reinstated without him being returned to court and he would be sent to prison to serve his sentence. We further note that, after being sent to prison, the defendant sent a letter to the court where he quite clearly indicated that he generally knew he had a right to be present at hearings, since he protested that the hearing was held without him.

In sum, we conclude defendant was adequately advised of his right to be present at any postexclusion criminal proceeding when he waived that right.

Defendant next muses that the waiver may be invalid because perhaps it was not executed in open court. This suggestion, however, is refuted by the record. Defendant and counsel were present at the time the waiver was filed and the court stated that [a] 3053 waiver form has been signed and will become part of the file. (Cf. People v. Visciotti (1992) 2 Cal.4th 1, 49.) The minute order of the May 3, 2005, proceeding during which defendant executed the waiver specifically states: Defendant executes 3053 W&I waiver in open court. We presume the minutes of the court are correctly kept. (People v. Gaines (1877) 52 Cal. 479, 480.)

Defendant also argues that the waiver did not advise defendant that he would be prohibited from litigating the validity of, or challenging on appeal, his exclusion from the CRC. The problem with this contention is that defendant was not so prohibited. When a defendant is rejected from the CRC, the trial court has the authority to review the rejection for an abuse of discretion. (People v. Montgomery (1967) 255 Cal.App.2d 127, 131.) The court must undertake such a review and hearing upon request by the defendant. (Ibid.)

Here, however, defendant did not ask for a hearing on the legality of his exclusion from the CRC in a timely manner. Defendant was excluded from the CRC on July 29, 2005. The trial court vacated the civil commitment and executed the previously suspended prison sentence at a hearing on August 23, 2005. On September 5, 2005, defendant sent a letter to the court claiming he wanted to be present at the hearing and did not remember signing any waivers of any kind. It was not until defendants September 16, 2005, notice of appeal that defendant indicated in any fashion that he believed he was wrongfully excluded from the CRC.^[1]

Thus, although defendant was not prevented from litigating the legality of his exclusion, he did not ask for a hearing in a timely manner. (See People v. Hannagan (1967) 248 Cal.App.2d 107, 114-115 [time to contest exclusion is at hearing resuming criminal proceedings and executing sentence]; see also People v. Ramirez (1979) 25 Cal.3d 260, 264-265; People v. Montgomery, supra, 25 Cal.App.2d at p. 131.) Nor was defendant prohibited from litigating the legality of his exclusion on appeal, had he raised it in a timely manner in the trial court. (People v. Ramirez, supra, at pp. 264-265, [review of order excluding defendant from the CRC is reviewable in trial court upon return of defendant and, following such review, on appeal from the judgment].)

Defendant also argues that the waiver did not advise him that he would be precluded from seeking a postexclusion modification of his sentence. This argument is refuted by the language of the waiver itself. The waiver specifically states that the court had determined that should the defendant be rejected or disqualified from the California Rehabilitation Center program for any legal reason, the Court would not modify in any way the sentence imposed herein. This language sufficiently advised defendant that the trial court would not modify defendants sentence or entertain a request for a modification should defendant be excluded from the CRC.

Defendant also argues that the waiver did not take effect because he was not legally excluded from the CRC. Relying on People v. Ryan (1992) 9 Cal.App.4th 1855, he argues that the waiver did not apply to his unlawful exclusion from the CRC.

Initially, we emphasize that no appeal lies from the nonjudicial order of exclusion by the Director of the CRC. As stated herein, review of such orders for abuse of discretion is available in the trial court upon return of the defendant for resumption of the criminal proceedings if requested by defendant, and, following such review, on appeal from the judgment. (People v. Ramirez, supra, 25 Cal.3d at pp. 264-265.) Defendant seeks to circumvent this rule by bootstrapping his challenge to his exclusion into his argument regarding the validity of his waiver. Such bootstrapping is impermissible.

In any event, the record does not demonstrate that defendant was unlawfully excluded. In Ryan, the defendant was attacked by three CRC inmates as he slept. (People v. Ryan, supra, 9 Cal.App.4th at p. 1857.) The CRC thereafter excluded the defendant because both the defendant and the warden were concerned for his safety and defendant could not be in the open dormitory setting. (Id. at pp. 1857-1858.) The trial court deferred to the wardens discretion and the appellate court reversed. (Id. at pp. 1858-1859.) The court held that basic principles of fairness precluded excluding a defendant from the CRC for being the victim of an assault and that the warden had an obligation to keep the peace at the CRC, whether by implementing additional security precautions or by excluding the attackers. (Ibid.)

Here, unlike in Ryan, the record does not reflect either that defendant had been attacked or threatened, or that the warden was concerned for defendants safety. There is nothing in the record to establish that the CRC excluded defendant because defendant was in danger and steps were not being taken to adequately protect him. The record reflects only that defendant was afraid to be housed with the rest of the population because he believed the entire inmate population had labeled him an informant. Under these circumstances, it was within the discretion of the CRC officials to determine that defendant could not be treated within the program design.

Finally, defendant argues he was prejudiced by the invalid waiver because had defendant been present at the postexclusion hearing, the court may have found he was improperly excluded from the CRC or otherwise modified defendants sentence. Since we have herein determined that the waiver was not invalid, we need not address any alleged prejudice.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] In his notice of appeal, defendant wrote: I have continualy [sic] voiced my thoughts on C.R.C. I never wanted to be or get excluded from C.R.C. nor played, no, wrong part in it. [] Also I was told that, I was going to be appearing, in front of Judge Hermansen for this exclusion hearing to happen, and that has not happened, and anything I may have signed without reading I appeal.