Opinion
For Opinion on Hearing, see 100 Cal.Rptr. 612, 494 P.2d 684.
Opinion on pages 980 to 989 omitted
HEARING GRANTED
See 6 Cal.3d 811 for Supreme Court opinion.
[97 Cal.Rptr. 221] Robert L. Fletcher, Jr., San Francisco, for appellant (By order of Court of Appeal).
Evelle J. Younger, Atty. Gen. of California, Robert R. Granucci, Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for respondent.
MOLINARI, Presiding Justice.
Defendant appeals from a judgment entered on jury verdicts convicting him of illegal possession of marijuana in violation of Health and Safety Code section 11530, illegal possession of a dangerous drug, to wit, amphetamine, in violation of Health and Safety Code section 11910, and illegal possession of a hypodermic needle and a hypodermic syringe, in violation of Business and Professions Code section 4143.
Defendant was an outpatient from the California Rehabilitation Center at Corona, having been committed to that institution as a narcotic addict following a narcotics conviction. On July 17, 1969, defendant rented a cabin from Bernice Smith, the owner of the Pine Hill Trailer Park in Eureka, moving in the next day. From the time he moved in until July 28, Mrs. Smith observed defendant and at least 40 persons going to and from defendant's cabin in a 'continuously [sic] stream.' Sometimes defendant would leave several of these people in his cabin while he went out. Mrs. Smith often observed people leaving the cabin carrying objects. She relayed her observations to the Humboldt County Sheriff's Office.
The sheriff's office contacted Elmer Cox, defendant's parole officer, advising him that defendant was suspected of dealing in narcotics. After discussing the matter with two of the sheriff's deputies, [97 Cal.Rptr. 222] Cox decided to go out to the cabin to talk with defendant and to search his room in order to determine whether he was involved in narcotics activity. Cox and the two deputies drove to the trailer park between 4 and 5 p. m. where they first conversed with Mrs. Smith. Defendant was not home. At Cox's request Mrs. Smith unlocked the cabin door and admitted the officers into the cabin.
Testimony that defendant was suspected of dealing in narcotics was not adduced at the trial, but such testimony appears in the preliminary hearing transcript.
The officers searched the cabin. Cox found a Kodak film can in a small box on the living room table. The can contained 38 grams of an unknown pink powder. In the bedroom closet, Deputy Templeton discovered 2 grams of marijuana in the pocket of a gray work shirt; a homemade hypodermic syringe and needle in the pocket of a brown corduroy shirt; and in either a brown box or a blue suitcase on the floor, 29 capsules of Dexamyl (containing both amphetamine and barbiturates), 60 amphetamine pills, 4.5 grams of marijuana, and 7 packages containing 26 grams of marijuana seeds.
While the search was in progress, defendant drove up in a car with two other persons. Cox went outside and took defendant into custody. Defendant went inside the cabin where he was placed under arrest for the aforementioned penal offenses. A marijuana cigarette was subsequently found in a tobacco pouch stuck in the visor on the driver's side of the car. Defendant first contends that the court erred in denying his pretrial Penal Code section 995 motion to set aside the information on the ground that the evidence was illegally seized.
The People concede that, since the officers did not have a warrant and defendant was not present at the scene, the search of the cabin and seizure of the evidence therein would be illegal under rules applicable to ordinary citizens. They seek, however, to uphold the search on the ground that defendant was not an ordinary citizen, but a person under a disability which attached to him as a parolee or patient released from the California Rehabilitation Center (hereinafter CRC) to which he was committed for narcotics addiction. Accordingly, they assert that since the search was reasonably related to defendant's supervision, it was legal, and the fruits thereof were admissible.
Defendant, on the other hand, relying on People v. Jasso, 2 Cal.App.3d 955, 82 Cal.Rptr. 229, contends that a CRC outpatient has the right to privacy enjoyed by an ordinary citizen and therefore is entitled to the full protection of the Fourth Amendment against unreasonable searches and seizures.
In Jasso, a parole agent received a telephone call inquiring whether Jasso, a CRC outpatient, was under the supervision of his office. Checking the files, the agent learned that Jasso's whereabouts were unknown and that he had failed to report for narcotics testing. The caller gave the agent a description of Jasso's automobile and the house where he was living. The agent, accompanied by several police officers, went to the area where the described house was located. As they were looking around the neighborhood, Jasso walked out of a house and got into his car. The agent approached Jasso and after ascertaining his identity took him into custody. At one point during the arrest, Jasso called out to his wife. The agent immediately went into the house, about 30 feet away, and searched it. The search turned up evidence upon which criminal actions were instituted. The court found the search to be illegal, declaring, 'The parole agent, acting as a supervising agent under the Narcotic Addicts Commitment Law, acted upon the theory that an outpatient's status was completely identical to that of a parolee. This is not true. While there are criminal aspects to narcotics addiction proceedings [citation], a commitment under sections 3050 et seq. of the Welfare and Institutions Code is deemed non-penal and civil in character. [Citations.] A parolee is a sentenced felon and in law is deemed 'civilly dead' for certain purposes under section 2600 of the Penal Code. [Citation.] [97 Cal.Rptr. 223] The outpatient's civil rights have not been lost, except as curtailed by the conditions deemed necessary to supervise his cure. (In re Trummer (1964) supra, 60 Cal.2d 658, 661-662, 36 Cal.Rptr. 281, 388 P.2d 177; People v. Moore (1968) supra, 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800; Welf. & Inst.Code, §§ 3151, 3152.) His status is more analogous to that of a defendant who has been placed on probation without imposition of a felony sentence. 'The probationer [whose guilt has been established by plea, finding, or verdict, but who has not been sentenced to prison] still retains his ordinary civil rights, unless the court has restricted them' (People v. Banks (1959) 53 Cal.2d 370, 386-387, 1 Cal.Rptr. 669, 348 P.2d 102 * * *) as a condition of probation. (See People v. Hernandez (1964) 229 Cal.App.2d 143, 150, 40 Cal.Rptr. 100 * * *.) A probationer enjoys the protection of the constitutional guarantees against unreasonable searches and seizures of his home (Martin v. United States (4th Cir. 1950) 183 F.2d 436, 439), absent some other legal basis for the search.' (People v. Jasso, 2 Cal.App.3d 955, 963-964, 82 Cal.Rptr. 229, 234.)
If the analogy of the status of a CRC outpatient to either a parolee or a probationer is determinative of the issue before us, we are inclined, with due respect for the rationale of Jasso, to the reasoning which leads to the conclusion that such status is more closely akin to that of a parolee than to that of a probationer. A parolee is said to be under the 'constructive custody' of the prison authorities. (See People v. Quilon, 245 Cal.App.2d 624, 627, 54 Cal.Rptr. 294.) A CRC outpatient is similarly under the 'constructive custody' of the Department of Corrections which administers the rehabilitation program and is responsible for his treatment and supervision. (Welf. & Inst.Code, §§ 3000, 3001, 3006, 3050, 3051, 3053, 3151, 3152, 3200. ) We observe, moreover, that the status of a probationer convicted of a felony is, in certain instances, analogous to that of a parolee. Thus, where sentence has been imposed but execution has been suspended, a probationer is in constructive custody and his status is similar to that of a parolee. (People v. Banks, 53 Cal.2d 370, 385-386, 1 Cal.Rptr. 669, 348 P.2d 102.) It is only when sentence has not been imposed that such a probationer is not in the constructive custody of any agency but is merely subject to be retaken into custody if he violated the conditions of probation. (See People v. Banks, supra, at pp. 386-387, 1 Cal.Rptr. 669, 348 P.2d 102.)
Unless otherwise indicated, all statutory references hereinafter made are to the Welfare and Institutions Code.
In In re Marks, 71 Cal.2d 31, 77 Cal.Rptr. 1, 453 P.2d 441, the Supreme Court, in discussing the history of section 3151, providing for outpatient status, quoted with implied approval portions of the opinion of the Attorney General (49 Ops.Cal.Atty.Gen. 11 (1967)) stating that "although the California Rehabilitation Center outpatient is not officially called a parolee, the manner and methods of release and the continuing control and supervision of a parolee from prison and an outpatient from California Rehabilitation Center are strikingly similar,' particularly 'with reference to the respective return to confinement of parole violators and California Rehabilitation Center outpatient violators." (At pp. 45-46, 77 Cal.Rptr. at p. 11, 453 P.2d at p. 451.)
The law of search and seizure as applied to a parolee is that 'A search of his premises is not to be tested by the rules which apply to citizens who are possessed of full civil rights. [Citations.] [p] A parole officer needs neither a search warrant nor consent of a parolee in order to search the latter's premises. [Citations.] Nor does the requirement of reasonable or probable cause apply to a search conducted by the parolee's supervisor. [Citation.]' (People v. Quilon, supra, 245 Cal.App.2d 624, 627, 54 Cal.Rptr. 294, 297; see People v. Thompson, 252 Cal.App.2d 76, 84-86, 60 Cal.Rptr. 203.) However, the [97 Cal.Rptr. 224] Supreme Court has said that 'Searches by parole officers pursuant to their duties, * * * [citation] are subject to the broad reasonableness requirement of the Fourth Amendment. [Citations.]' (In re Martinez, 1 Cal.3d 641, 647, fn. 6, 83 Cal.Rptr. 382, 383, 463 P.2d 734, 735.) 'The conditional nature of a parolee's freedom may result in some diminution of his reasonable expectation of privacy and thus may render some intrusions by parole officers 'reasonable' even when the information relied on by parole officers does not reach the traditional level of 'probable cause.' A diminution of Fourth Amendment protection, however, can be justified only to the extent actually necessitated by the legitimate demands of the operation of the parole process [citations].' (Emphasis added; People v. Martinez, supra, at p. 647, fn. 6, 83 Cal.Rptr. at p. 386, 463 P.2d at p. 738.)
The issue to be determined, therefore, is whether the search in the instant case comports with the legitimate demands of the rehabilitation process. In considering this issue we first observe that although, pursuant to section 3151, persons released as CRC patients are not subject to the suspension of civil rights under Penal Code section 2600, such persons do not entirely enjoy the status of ordinary citizens because, under the provisions of section 3152, they are subject to close supervision and testing for narcotic use.
Penal Code section 2600, in pertinent part, provides that 'A sentence of imprisonment in a state prison for any term suspends all the civil rights of the person so sentenced, * * *'
Welfare and Institutions Code section 3152 provides: 'The rules for persons in outpatient status shall include but not be limited to close supervision of the person after release from the facility, periodic and surprise testing for narcotic use, counseling and return to inpatient status at the California Rehabilitation Center or its branches at the discretion of the authority, if from the reports of agents of the Department of Corrections or other information including reports of law enforcement officers as to the conduct of the person, the authority concludes that it is for the best interests of the person and society that this be done.'
In enacting the provisions establishing the CRC outpatient program, the Legislature declared that its intent is that 'persons addicted to narcotics * * * 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 * * * against himself, but also for the prevention of contamination of others and the protection of the public.' (§ 3000, emphasis added.) The close supervision of CRC outpatients was considered necessary to fully rehabilitate former addicts and to prevent relapse. (See In re Trummer, 60 Cal.2d 658, 661, 36 Cal.Rptr. 281, 388 P.2d 177.)
Since the intent of the Legislature was to provide close supervision of CRC patients for the protection of both the addict and the public, it is unavoidable that in order to make the outpatient program work, a CRC outpatient's right to privacy be subject to such invasion as is reasonably necessary to effect adequate supervision. In this sense, the CRC outpatient has status similar to, but not identical with, a criminal parolee. As noted by the court in Hacker v. Superior Court, 268 Cal.App.2d 387, 390, 73 Cal.Rptr. 907, 910, 'While commitment proceedings are nonpenal in character, an outpatient does not enjoy full civil status. His place of abode, his place of employment and other activities are subject to approval and periodic review by his field agent. Further, when requested he must submit to narcotic use tests, such as the Nalline test used here. There is a calculated risk in the rehabilitation process that requires not only some impingement of an outpatient's civil rights, but close surveillance. To this extent there are criminal aspects to outpatient status [citation] which parallel the status of a parolee.'
In the instant case the search was necessitated by the legitimate demands of [97 Cal.Rptr. 225] the CRC outpatient program and, accordingly, was in keeping with the constitutional standard prescribed in In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734. The circumstance of the large number of persons going to and coming from defendant's cabin was a highly suspicious activity in view of defendant's previous narcotic experience. To the experienced parole officer familiar with defendant's prior narcotic record, such activity could reasonably indicate a traffic in narcotics, since the incidence and frequency of a large number of visitors to a dwelling is often associated with narcotic activity. This circumstance, when coupled with the police information that defendant was suspected of dealing in narcotics, justified the investigation by the parole agent to ascertain whether defendant was involved in narcotics activity.
Under the circumstances the search of defendant's cabin was reasonable. It was motivated by considerations directly related to defendant's narcotic addiction and had to do with ascertaining whether defendant reverted to narcotic use. (See In re Trummer, supra, 60 Cal.2d 658, 661, 36 Cal.Rptr. 281, 388 P.2d 177; In re Marks, supra, 71 Cal.2d 31, 39, 77 Cal.Rptr. 1, 453 P.2d 441.) The search, accordingly, was reasonably related to the 'close supervision' (§ 3152) of CRC outpatients mandated by the statutory scheme. To permit the highly suspicious activity occasioned by the many visitors to defendant's cabin to continue without investigation, in the light of his past use of illegal drugs, would clearly frustrate the purpose of the CRC outpatient rehabilitation program.
The circumstances of the present case distinguish it from the factual situation in Jasso. In that case, the defendant was being investigated because he had not advised the parole officer of his residence and for failing to appear for a Nalline test. He was not suspected of being involved in any sort of narcotics activity. Any search of his home was, therefore, unreasonably related to the demands of his supervision. Although the parole officer believed that Jasso's call to his wife might be a signal to get rid of evidence or to alert other addicts, the agent testified that as soon as he got to the door he neither observed not sensed anything to confirm his suspicions along these lines. (People v. Jasso, supra, 2 Cal.App.3d 955, 965, 82 Cal.Rptr. 229. )
We apprehend that since the holding in Jasso was factually correct, it is reasonable to assume that a hearing by the Supreme Court was denied on that basis.
Defendant next contends that a statement made by Officer Templeton in the presence of the jury was so prejudicial that it could reasonably have contributed to the adverse verdict. This contention is prompted by the following circumstances: At defendant's request, the court instructed the district attorney not to mention Mr. Cox's status as a parole agent to the jury. The district attorney, however, neglected to inform Deputy Templeton of this directive. When Templeton took the stand, and was asked who had accompanied him to the Pine Hill Trailer Court on July 28, he replied, 'Mr. Ames and State Parole Officer, Mr. Cox.' Defendant's motion for a mistrial was denied.
There is no showing that the district attorney's failure to inform the officer of the court's directive was due to any lack of good faith. Whatever effect the reference to Cox might have had upon the jury, it was harmless. This was the only reference to Cox as a parole agent throughout the trial. When the reference was made the court promptly gave instructions which directed the jury to disregard it, but without further emphasizing Cox's status. [488 P.2d 226] [97 Cal.Rptr. 226] This was not a close case; defendant offered no defense at all. Incriminating evidence was found in defendant's car and in his bedroom closet. Moreover, defendant's prior conviction of a narcotics violation was brought out before the jury as part of the prosecution's case in chief to show knowledge of narcotics. This being the case, the reference to Cox as a parole agent had no harmful effect since the jury knew that defendant had a prior narcotic conviction.
The court admonished the jury as follows: 'Ladies and gentlemen of the jury, you are instructed and admonished that you are to disregard the--completely the testimony which was given by the present witness concerning the title or capacity of Mr. Cox. This is a matter that has no relevance or bearing as far as the jury is concerned and you should completely disregard this. It's stricken from the record and the effect of this is just as if this testimony had not come out at all.'
The conviction was admitted under limiting instructions. The jury was instructed to ignore the fact of a prior conviction as bearing upon guilt.
Defendant finally contends that his trial counsel was incompetent because he failed to seek a review of the denial of his motion seeking to set aside the information on the ground that he had been committed without reasonable or probable cause. (Pen.Code, § 995, 999a.) The sole claim of prejudice is that had this procedure been followed he would not have suffered a state prison sentence. We have difficulty following this contention. If such review had been sought and the relief denied, the matter of sentence, if defendant was convicted, was solely for the trial court. Under our analysis of the case such relief would not have been warranted. In any event, an order denying a motion to dismiss an information under Penal Code section 995 is reviewable on an appeal from the judgment. (People v. Wilson, 268 Cal.App.2d 581, 588, 74 Cal.Rptr. 131; see People v. Anderson, 70 Cal.2d 15, 22-23, 73 Cal.Rptr. 550, 447 P.2d 942.) Here the propriety of such denial has been challenged on appeal. Since the writ would in all probability have been denied, we fail to see how defendant was prejudiced. Clearly there was no basis for the claim of competency of counsel. Trial counsel may well have concluded that the probability of success upon review by way of a writ of prohibition was minimal and that defendant was better served by bringing the case to trial rather than delaying it by utilizing the writ procedure under section 999a of the Penal Code. We conclude, therefore, that defendant was not denied the effective assistance of counsel.
The judgment is affirmed.
SIMS and ELKINGTON, JJ., concur.