Opinion
A115979
4-25-2007
MICHAEL HENNESSEY, as Sheriff, etc., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE et al., Real Parties in Interest.
NOT TO BE PUBLISHED
On November 20, 2006, respondent, Superior Court of the City and County of San Francisco, pronounced judgment and sentence in the case of People v. George L. Turner. (Pen. Code, § 1193.) In accordance with the terms of a negotiated disposition, Turner was sentenced to a total state prison term of 12 years eight months. Immediately thereafter, the court issued its order prohibiting and staying his transfer to the custody of the California Department of Corrections and Rehabilitation (CDCR).
Further statutory references not otherwise noted are to this code.
By this petition for extraordinary relief, the Sheriff of the City and County of San Francisco (Sheriff) challenges that order as contrary to Penal Code sections 1202a and 1216. We agree that the superior courts order is in excess of its jurisdiction. We previously issued our alternative writ; however, the superior court declined to voluntarily set aside its stay order, and real party Turner has filed a return to the alternative writ of mandate. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶¶15:151 to 15:157.6, pp. 15-70.13 to 15-70.16; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2006) Writs in California State Courts, § 42.16C, p. 1298.) Accordingly, we now direct issuance of a peremptory writ.
As an aggrieved third party affected by the courts order, the Sheriff has standing to challenge it. (See, e.g., Pitchess v. Superior Court (1974) 11 Cal.3d 531, 534; Peery v. Superior Court (1981) 29 Cal.3d 837, 841; People ex rel. Dept. of Conservation v. El Dorado County (2005) 36 Cal.4th 971, 986.) The People and the CDCR are also real parties in interest to the proceeding in this court, as they are necessarily aggrieved by the order staying Turners commitment to state prison. The Sheriff failed to serve them when he filed the petition, but did so on our order.
Real party Turner and the superior court apparently misunderstood the directive in our alternative writ. On February 16, 2007, the court held another hearing in Turners case, and submitted the transcript of that hearing to this court as "Compliance with Court of Appeal Alternative Writ of Mandate." The transcript suggested that the superior court seemed unaware that our directive gave it the option to voluntarily comply with the alternative writ by immediately setting aside its November 20, 2006 order and issuing its judgment (Pen. Code § 1202a), thereby rendering the petition moot. (Eisenberg et al., Civil Appeals and Writs, supra, ¶15:157.5 to 15:157.6, pp. 15-70.15 to 15-70.16.) We therefore issued a further order extending time for compliance with the alternative writ, directing service of the February 16, 2007 transcript on all parties, and requiring notice to the Attorney General of any further proceedings.
Thereafter, on February 27, 2007, the superior court clerk sent a letter notice of a hearing on March 6, 2007. The proof of service of that notice bears an incorrect address for the Attorney General.
The transcript of the March 6, 2007 hearing was filed in this court by the superior court. The Attorney General did not appear at the hearing, apparently having received no notice of it. Once again, the superior court declined to comply with the alternative writ.
BACKGROUND
The parties are familiar with the procedural history of this case, and we therefore need not reiterate it in detail. (People v. Garcia (2002) 97 Cal.App.4th 847.) Mr. Turner suffers from Crohns Disease and Hepatitis C, both of which require constant monitoring and treatment. On August 30, 2005, he entered his guilty plea to one count of robbery (§ 212.5, subd. (c)) and two counts of false imprisonment (§ 236), and admitted a prior strike conviction (§ 667.5, subds. (d) & (e)). Prior to sentencing, he moved to stay his transfer to CDCR on the ground that such a transfer would subject him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because the CDCR was incapable "at this time" of providing the medical care required by his conditions.
As noted, Turners plea was pursuant to a negotiated disposition. Nothing in the record suggests that the plea was conditioned on the stay order that is the subject of this petition.
The superior court conducted a hearing on the motion on January 19, 2006. The Sheriff and the CDCR do not appear to have been given notice of the hearing. The court considered an order submitted by Turner that had been issued by the Honorable Thelton Henderson in the ongoing United States District Court case Plata v. Schwarzenegger (N.D.Cal. Oct. 3, 2005, No. C01-1351 TEH) 2005 U.S.Dist. Lexis 43796 (Plata)), stating Judge Hendersons factual findings and his conclusion that the CDCRs medical system is constitutionally inadequate. It also heard the testimony of the San Francisco jails chief medical officer who expressed the view that emergency, life threatening, complications from Turners condition "could be missed" with "critical treatment . . . postponed, delayed or not given." Notwithstanding his concern, the chief medical officer also stated that some CDCR facilities "would probably be okay."
The superior court continued sentencing to attempt to obtain assurances from the CDCR and/or the receiver appointed in Plata that Turner would receive adequate treatment, eventually pronouncing judgment and sentence and issuing the order challenged here in the absence of such assurances. It is unclear what the superior court expected in the way of assurances or how they were to be delivered. At the hearing held March 6, 2007, after issuance of our alternative writ, the court and counsel discussed prior telephone calls and letters to persons within the CDCR, as well as to the office of the receiver appointed in Plata. We observe that the CDCR and the Sheriff were not parties to the criminal proceeding. The record does not demonstrate that they had ever been served with any court orders to appear and give evidence. The issue of medical care for Turner did not arise in the context of a petition for writ of habeas corpus to the superior court, an appropriate procedural vehicle to assert a cruel and unusual punishment claim, or to challenge constitutionally inadequate prison conditions and obtain an evidentiary hearing on explicit claims as to which a prima facie case has been pleaded. (§ 1473 et seq.; In re Swain (1949) 34 Cal.2d 300, 304; In re Hochberg (1970) 2 Cal.3d 870, 873-874; People v. Duvall (1995) 9 Cal.4th 464, 474-475; In re Davis (1979) 25 Cal.3d 384, 387; In re Arias (1986) 42 Cal.3d 667, 678; In re Foss (1974) 10 Cal.3d 910, 917; People v. Landers (1976) 59 Cal.App.3d 846, 849.)
We express no view on the legality of such orders, absent a habeas corpus proceeding or other proceeding challenging conditions in the CDCR.
DISCUSSION
Section 1202a requires the superior court judgment to direct delivery of the defendant to the custody of the Director of Corrections. And section 1216 mandates the Sheriff, on receipt of the abstract of judgment, to deliver the defendant to the warden of the state prison designated by the Director of Corrections. It is well settled that the superior court has no authority to deviate from the statutory mandate. (People v. Mendosa (1918) 178 Cal. 509, 511 [no authority to suspend execution of state prison sentence and remand to local custody]; People v. Thomas (1976) 65 Cal.App.3d 854, 858 [no jurisdiction to specify detention in particular facility].)
The relevant provisions of the two statutes provide: "If the judgment is for imprisonment in the state prison the judgment shall direct that the defendant be delivered into the custody of the Director of Corrections at the state prison or institution designated by the Director of Corrections as the place for the reception of persons convicted of felonies . . . ." (§ 1202a.) "If the judgment is for imprisonment in the state prison, the sheriff of the county shall, upon receipt of a certified abstract or minute order thereof, take and deliver the defendant to the warden of the state prison." (§ 1216.)
Real party Turner contends, however, that the superior court had authority to ignore the statutory command and to issue its stay because the evidence before it demonstrated that he would be subjected to cruel and unusual punishment if delivered to the custody of the Director of Corrections. We need not and do not decide that issue, because nothing in the record before this court supports the conclusion that Turner will be subjected to constitutionally impermissible punishment. The jails chief medical officer could only speculate about the nature of the care that Turner will receive. We recognize the gravity of Judge Hendersons decision in Plata. But Judge Hendersons findings concerning the general state of medical care in the CDCR, set forth in his order in Plata, a civil class action, may not be read to support the conclusion that all persons with serious medical problems such as Turner will in fact receive constitutionally inadequate medical care and thus avoid commitment to CDCR. (See, e.g., People v .Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 534-535.) CDCR is required to provide necessary medical treatment for prisoners. (3 Witkin, Cal. Criminal Law (3d ed. 2000) Punishment, § 63, p. 107.)
Turner also argues that the District Attorney presented no evidence contradicting Judge Hendersons order and the jails chief medical officers testimony. The argument ignores the fact that the District Attorney does not represent the CDCR which, as noted, was not a party to the criminal proceeding below.
Penal Code section 6102 provides for a Medical Facility for the treatment and care of inmates suffering from chronic disease. The Department of Corrections and Rehabilitation maintains the facility in Vacaville, California.
CONCLUSION AND DISPOSITION
Based on the record in this case, the superior court was without authority to stay Turners delivery to the custody of the Director of Corrections, in violation of Penal Code section 1202a. Therefore, let a peremptory writ of mandate issue commanding the San Francisco Superior Court to set aside its order of November 20, 2006, and to instead immediately issue its abstract of judgment and proceed in accordance with Penal Code section 1202a so that the Sheriff of the City and County of San Francisco may comply with his statutory obligation under Penal Code section 1216. The writ is without prejudice to Turners right to seek appropriate relief in the superior court should he not receive proper care while in the custody of the CDCR.
We concur:
Swager, J.
Margulies, J.