Opinion
Hearing Granted Aug. 18, 1971.
Opinion on pages 281 to 285 omitted
HEARING GRANTED
Robert A. Martin (Court-appointed counsel), San Francisco, for appellant.
Evelle J. Younger, Atty. Gen. of Cal., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.
SHOEMAKER, Presiding Justice.
Defendant appeals from a judgment convicting him of two counts of selling or furnishing heroin. He complains that he was eligible for the California Rehabilitation Program, but that he was improperly denied the benefit thereof.
The defendant is a narcotic addict and had previously been convicted of assault with a deadly weapon, and he was thus excluded from the rehabilitation program (Welf. & Inst.Code, § 3052) unless the court, with the concurrence of the district attorney, determined the case to be an unusual one and ordered commitment notwithstanding the prior conviction (Welf. & Inst.Code, § 3051). The defendant urged his commitment under Welfare and Institutions Code, section 3051, but the district attorney refused concurrence and the trial court stated that it was therefore without authority to make an order for commitment.
Defendant first argues that his prior conviction of assault with a deadly weapon furnished no basis for excluding him from the rehabilitation program because he was committed to the California Youth Authority and was later honorably discharged from control by the authority, and that he had never been placed in a state prison by the authority.
Defendant relies upon Welfare and Institutions Code, section 1772, which provides in pertinent part that 'Every person honorably discharged from control by the [95 Cal.Rptr. 741] Authority who has not, during the period of control by the Authority, been placed by the Authority in a state prison shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he was committed, and every person discharged may petition the court which committed him, and the court may upon such petition set aside the verdict of guilty and dismiss the accusation or information against the petitioner who shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he was committed. * * *'
Defendant interprets the first clause of section 1772 to mean that an individual who was committed to the California Youth Authority, who was not placed in a state prison and who was honorably discharged by the authority, is thereby automatically released from the penalties and disabilities resulting from the offense for which he was committed. Defendant denies that there is any necessity for such an individual to follow the procedure of petitioning the committing court, and asserts that the requirement of filing such a petition was intended to apply only to individuals who, although discharged from control by the authority, were not honorably discharged or had been placed in a state prison.
The Attorney General accepts defendant's assertion that he received an honorable discharge from the authority and was never placed in state prison. However, he does not agree with defendant's interpretation of Welfare and Institutions Code, section 1772, and urges that the section confers no benefit upon an individual such as defendant who failed to comply with the procedural requirement of petitioning the committing court.
Although no California case has directly dealt with the question here presented, the Ninth Circuit Court of Appeals has been called upon to determine whether a California conviction ceased to exist, for the purposes of certain federal registration and deportation statutes, when the convicted individual qualified for relief under Welfare and Institutions Code, section 1772. The Court of Appeals held that the conviction had not been eradicated under the California statute and that it still furnished grounds for deportation or for compulsory registration upon entering or departing from the United States. (de la Cruz-Martinez v. Immigration & Naturalization Serv. (9th Cir. 1968) 404 F.2d 1198, 1199-1200, cert. denied 394 U.S. 955, 89 S.Ct. 1291, 22 L.Ed.2d 491; Adams v. United States (9th Cir. 1962) 299 F.2d 327, 331-332.)
The opinion in the Adams case, which was written by Duniway, C. J., contains language directly dispositive of the contention urged by defendant herein. The court stated: 'd. We do not think that, under California law, appellant's honorable discharge 'wiped out' his conviction. The second clause of § 1772 of the Welfare and Institutions Code provides, in permissive but not mandatory language, a method of doing so. The California Supreme Court, again construing a comparable statute [Pen.Code, § 1203.4], has held that its provisions are not effective even where a defendant has a right to the court's order but has not obtained it. People v. Banks, 1959, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102. Thus, even assuming that under § 1772 appellant's honorable discharge would entitle him, as of right, to an order of the California court setting aside his conviction and dismissing the proceeding against him, this does not mean that his conviction has been 'wiped out' when he has not obtained the order.
'e. Finally, it appears that, even if appellant had obtained the court order provided for in Welfare and Institutions Code, § 1772, his conviction would not have been 'wiped out' for all purposes under California law. As the California Supreme Court said [in] In re Phillips [17 Cal.2d 55, 109 P.2d 344], supra, such an order is not 'analogous to an order granting a new trial or to the reversal of a judgment [95 Cal.Rptr. 742] of conviction on appeal'. The court pointed out that the latter are based on errors affecting the validity of the conviction, while a probation pre-supposes guilt. It said that Sections 1203-1203.4 of the California Penal Code 'are concerned with mitigation of punishment and confer discretion upon the courts in dealing with a convicted defendant. * * * But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. * * * In brief, action in mitigation of the defendant's punishment should not affect the fact that his guilt has been finally determined according to law. * * * That final judgment of conviction is a fact; and its effectiveness cannot be nullified for the purpose here involved, either by the order of probation or by the later order dismissing the action after judgment.' (109 P.2d at p. 347.) * * *
'In short, we are of the opinion that the honorable discharge of appellant by the California Youth Authority did not wipe out his conviction for the purposes of this case.' (Adams v. United States, supra, at pp. 331-332.)
We are persuaded that the reasoning of the Adams case is correct and is equally applicable here, with the result that defendant's conviction of assault continues to exist for the purpose of Welfare and Institutions Code, section 3052, and renders defendant ineligible for the California Rehabilitation Program.
Defendant's final contention is that Welfare and Institutions Code, section 3051, is unconstitutional and violates the principle of separation of the powers of government because it provides that the sentencing judge must obtain the concurrence of the district attorney in order to commit a defendant to the California Rehabilitation Center despite a prior conviction of the type specified in Welfare and Institutions Code, section 3052.
This precise argument was raised and rejected in the recent case of People v. Harris (1971) 17 Cal.App.3d 388, 95 Cal.Rptr. 80. The court there held that 'it is neither unreasonable nor an unconstitutional interference with the power of the judiciary to make special eligibility dependent on the concurrence of the district attorney.' (P. 396, 95 Cal.Rptr. p. 85.)
Judgment affirmed.
TAYLOR and KANE, JJ., concur.