In Re Hawkins

Opinion

BLEASE, J.

Petitioner James Henry Hawkins challenges, by means of a writ of habeas corpus, a two-year enhancement of his maximum period of imprisonment, imposed on him by the Community Release Board (CRB)

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pursuant to Penal Code section 667.5, subdivision (b), for having been in “prison custody” within five years of the commitment offense as service for prior felony convictions.

The sole issue tendered is whether a period of placement in a Narcotics Treatment and Control Unit (NTCU), under the authority of

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Health and Safety Code section 11561, without revocation of parole, is “prison custody” within the meaning of Penal Code section 667.5. We hold that it is not.

Facts

On March 9, 1978, petitioner was convicted of a violation of Health and Safety Code section 11352 (sale of heroin), which occurred on March 10, 1977. He was committed to prison under the Indeterminate Sentence Law (ISL). The violation took place five years and one month after petitioner’s release on parole (Feb. 11, 1972) from commitments for four prior felony convictions.

In 1972, within the five-year period, petitioner’s parole officer discovered that he had attempted to obtain a narcotics prescription using an alias. Petitioner admitted the attempt and agreed to a “dry out” period. He was placed in the Narcotics Treatment and Control Unit (NTCU), pursuant to Health and Safety Code section 11561, on November 29, 1972. He was released on February 23, 1973. The commitment to NTCU did not result in prosecution for any offense and petitioner’s parole was not revoked, suspended or cancelled under Penal Code section 3060. He was discharged from parole on December 13, 1976.

Following the adoption of the determinate sentence law (DSL) petitioner’s maximum term of imprisonment was recomputed by the CRB under the provisions of Penal Code section 1170.2, subdivision (a), which incorporates the enhancement provisions of Penal Code section 667.5.