Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Gordon R. Burkhart, Judge, Super.Ct.Nos. RIF103271, RIF110417.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
In 2003, the trial court civilly committed defendant to the California Rehabilitation Center (CRC). At the time of commitment, the trial court suspended the execution of a five-year prison sentence. In November 2005, CRC recommended that defendant be successfully discharged. Eight months later, in defendant’s absence, the trial court successfully discharged defendant from CRC but reinstated her suspended five-year sentence. The trial court also ordered the Department of Corrections and Rehabilitation to determine her custody credits.
On appeal, defendant contends that (1) the trial court’s reinstatement of the prison sentence at an ex parte hearing violated her due process rights; and (2) the trial court erred in delegating its duty to calculate defendant’s custody credits to the Department of Corrections and Rehabilitation. We agree with defendant.
The facts underlying defendant’s convictions are not relevant to the issues on appeal.
PROCEDURAL BACKGROUND
A. Case No. RIF103271
On August 8, 2002, defendant pleaded guilty to assault with a deadly weapon and admitted a great bodily injury enhancement. In exchange for her guilty plea, the trial court sentenced defendant to three years’ felony probation.
B. Case No. RIF110417
On June 3, 2003, while on probation in case No. RIF103271, defendant was charged with being in possession of cocaine and paraphernalia. On June 12, 2003, defendant admitted possessing cocaine and violating the terms of her probation in case No. RIF103271.
In case No. RIF110417, the trial court sentenced defendant to three years’ felony probation but stayed probation until completion of a Proposition 36 residential program.
As a result of her probation violation in case No. RIF103271, the trial court reinstated probation but also stayed its commencement date until defendant’s successful completion of the residential program.
C. Case No. PR0316984
On July 23, 2003, defendant admitted violating the terms of her probation in case Nos. RIF103271 and RIF110417 by possessing drug paraphernalia.
The trial court appointed a doctor; the doctor declared defendant was in imminent danger of becoming addicted.
On September 17, 2003, in case No. RIF103271, the trial court sentenced defendant to five years in prison (two years for the assault and three years for the great bodily injury enhancement); in case No. RIF110417, the trial court sentenced defendant to two years in prison, to be served concurrent to the sentence in case No. RIF103271. The trial court then suspended execution of the prison sentences, adjourned the criminal proceedings, and committed defendant to CRC under Welfare and Institutions Code section 3051.
D. Civil Commitment at CRC
On September 19, 2003, defendant began her commitment in CRC. On November 15, 2005, CRC recommended discharging defendant from CRC under Welfare and Institutions Code section 3200.
On January 18, 2006, defendant was arrested for possessing nunchakus (case No. RIF128030). On March 9, 2006, defendant pleaded guilty to possessing nunchakus, and the trial court sentenced her to 16 months in prison.
On July 6, 2006, at an ex parte hearing, the trial court granted defendant a successful discharge from CRC commitment. However, the trial court also reinstated the previously suspended prison sentences in case Nos. RIF103271 and RIF110417. There is no transcript of the ex parte hearing.
II
ANALYSIS
A. The Trial Court Violated Defendant’s Due Process Rights
Defendant contends, and the People concede, that the trial court violated defendant’s due process rights when it reinstated her five-year prison sentence at an ex parte hearing.
The Fourteenth Amendment of the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law . . . .”
The United States Supreme Court has held that the liberty of a defendant while released on parole is protected under the Fourteenth Amendment. (Morrissey v. Brewer (1972) 408 U.S. 471, 483 [92 S.Ct. 2593, 33 L.Ed.2d 484].) In People v. Vickers (1972) 8 Cal.3d 451, the California Supreme Court extended the holding in Morrissey. The court held that the liberty of a defendant while released on probation is also protected under the Fourteenth Amendment. (Vickers, at p. 458.) The court stated that minimum due process requirements were applicable to state probation revocation proceedings and concluded that although a summary revocation of probation may be based upon a probation officer’s report, thereafter the probationer must be afforded a second-stage hearing with its attendant due process protections (id. at pp. 460-461), including “‘(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.’” (Id. at p. 457; see also People v. Arreola (1994) 7 Cal.4th 1144, 1152 [holding the admission of the preliminary hearing transcript at the probation revocation hearing without any showing of good cause or evidence of the witness’s unavailability violated the defendant’s federal constitutional right to due process of law and his right of confrontation].) The standard of proof for establishing a basis for revocation of probation is a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.)
In this case, defendant was entitled to at least some minimal due process rights, including the right to be present and to present mitigating evidence, at the hearing following her discharge from CRC, because the decision involved court discretion based on facts. The trial court had discretion to modify defendant’s sentence, dismiss the criminal charges, or suspend further proceedings, whatever it deemed “‘warranted in the interests of justice.’” (People v. Barnett (1995) 35 Cal.App.4th 1, 4; see also People v. Nubla (1999) 74 Cal.App.4th 719, 726; Welf. & Inst. Code, § 3200, subd. (b).) “[T]here is no statutory or administrative mandate that the previously imposed judgment be in full force and effect . . . .” (Nubla, at p. 728.) The only limitation from commitment is that a defendant may not be sentenced to a greater term than the term in the sentence originally imposed and suspended. (Id. at p. 727.) In other words, the sentence imposed before defendant was civilly committed was “for practical purposes only an interim sentence.” (Barnett, at p. 3.)
Here, the People concede that defendant’s “situation was no different than a parolee or probationer facing revocation. She had an interest in her sentence, and the court had discretion over it. Given that the United States Supreme Court and California Supreme Court have found that parolees and probationers have some minimal due process rights before parole or probation can be revoked, it appears inescapable that [defendant] must also have been entitled to at least be present at the hearing before her prison sentence was reinstated.” We agree.
In view of the foregoing, the trial court erred in reinstating defendant’s five-year prison sentence at an ex parte hearing.
Assessing prejudice under the “harmless-beyond-a-reasonable-doubt” standard (People v. Arreola, supra, 7 Cal.4th at p. 1161), we cannot conclude the error was harmless. Here, instead of reinstating defendant’s prison term, the trial court could have modified or dismissed defendant’s criminal charges, had she been present at the hearing and been able to present mitigating evidence on her own behalf. In fact, at an interim sentencing hearing on September 17, 2003, the trial court advised defendant that it would exercise its discretion to dismiss defendant’s conviction upon successful completion of the CRC program. The court stated: “After you complete the program, if you complete it successfully, the case gets dismissed. Your violation of probation gets dismissed.” Because there is no transcript of the ex parte hearing, the trial court’s reason for reinstating the sentence is unknown. Therefore, we cannot conclude, as a matter of law, that it would be futile to afford defendant a new hearing.
B. The Trial Court Erred in Delegating Its Duty to Determine Credits
Defendant contends that the trial court erred when it delegated its duty at the ex parte hearing to the Department of Corrections and Rehabilitation to determine custody credits for defendant’s time spent in CRC.
On July 6, 2006, at the ex parte hearing, after the court reinstated criminal proceedings and execution of the suspended prison sentences in case Nos. RIF103271 and RIF110417, the trial court ordered the Department of Corrections and Rehabilitation to determine defendant’s custody credits.
When a patient is discharged from CRC and criminal charges are not dismissed, the patient is entitled to credit for time served in custody while committed. (Welf. & Inst. Code, § 3200, subd. (b).) A CRC inmate is not entitled to good behavior, participation, or work time credits while committed to CRC. (People v. Madison (1993) 17 Cal.App.4th 783, 787-789.) Penal Code section 2900.5, subdivision (d) provides that when a defendant is given credit for time spent at a rehabilitation facility, “[i]t shall be the duty of the court imposing the sentence to determine . . . the total number of days to be credited.”
As explained in People v. Chew (1985) 172 Cal.App.3d 45, disapproved on another ground in People v. Buckhalter (2001) 26 Cal.4th 20, 40, “[s]ection 2900.5 requires the sentencing court to determine the actual days of physical confinement of the nonprison kind, including the extra or bonus credits earned in the jail, farm or camp, and the number of days served in prison pending resentencing. Other code sections (§§ 2930-2935) assign to the Director of Corrections the duty of determining prison behavior and worktime credits, including the determination of appropriate worktime credits while the defendant is away from prison awaiting resentencing.” (Chew, at p. 50)
Division Three of this district reaffirmed the above holding in People v. Thornburg (1998) 65 Cal.App.4th 1173, disapproved on another ground in People v. Buckhalter, supra, 26 Cal.4th at page 40. The court illustrated: “[I]t is the duty of the sentencing court to calculate actual days spent in custody pursuant to section 2900.5, subdivision (d). This includes time spent in jail pending resentencing. [Citation.] . . . Thus, the trial court should have calculated the total number of actual days spent in custody, whether jail or prison, added the appropriate number of section 4019 conduct credits, and issued an amended abstract.” (Thornburg, at pp. 1175-1176; accord, People v. Honea (1997) 57 Cal.App.4th 842, 844-846, disapproved on another ground in People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.)
Here, the trial court failed to carry out its duty “to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited” as required by section 2900.5, subdivision (d). The trial court did not calculate any custody credits but, instead, directed that the Department of Corrections and Rehabilitation do so. In doing that, the trial court erred. Therefore, we must remand this matter in order for the trial court to calculate defendant’s custody credit.
III
DISPOSITION
The order reinstating defendant’s prison sentence is reversed. This case is remanded to the trial court for a new sentencing hearing. Moreover, at the sentencing hearing, the trial court is ordered to calculate defendant’s credits under Penal Code section 2900.5.
We concur: GAUT, J., KING, J.