People v. Hernandez

Opinion

KINGSLEY, J.

In case No. 328428, the defendant was charged with possession of heroin for sale (Health & Saf. Code, § 11500.5), and was found guilty of the lesser included offense of possession of heroin (Health & Saf. Code, § 11500.)

In case No. A-100857 defendant was charged with violation of Health and Safety Code section 11500.5 and was found guilty as charged.

In case No. A-101776 defendant was charged with violation of Health and Safety Code section 11500, and was found guilty as charged.

Proceedings were adjourned, defendant was referred to department 95

[648]

to determine whether defendant was addicted to the use of narcotics or in imminent danger of becoming addicted.

Defendant was committed by department 95 to the California Rehabilitation Center (hereinafter sometimes referred to as the CRC); he was rejected by the CRC): he was returned to court, application to recommit defendant to the CRC was denied, and defendant was sentenced to state prison for the term prescribed by law, terms to run concurrently. Defendant appeals from the conviction.

Facts

The judge in department 95 found defendant eligible for the narcotics rehabilitation program, and defendant was committed to the Department of Corrections pursuant to Welfare and Institutions Code section 3051. The United States Department of Justice, Immigration and Naturalization Service, notified the CRC that a detainer had been placed on defendant and that it was the intent of the government that defendant be deported from the United States. The trial court was of the opinion that the rehabilitation program could not be successful with reference to someone who was going to be deported, and refused to recommit defendant to the CRC.

Defendant contends that it was not within the discretion of the Director of Corrections, through the superintendent of the CRC, to réject defendant on the grounds that defendant was going to be deported. Welfare and Institutions Code section 3053 provides as follows: “If at any time following receipt at the facility of a person committed pursuant to this article, the Director of Corrections concludes that the person, because of excessive criminality