People v. Washington

Opinion

TAYLOR, P. J.

Appellant pled guilty to attempted burglary (Pen. Code, §§ 665, 459). The court sentenced appellant to state prison, suspended execution of sentence and placed him on probation. As a condition of probation appellant was ordered to serve nine months county jail time. Appellant actually served 180 days of the required jail time before his early release.

Subsequent to release, appellant was again arrested and held to answer on a new charge of vehicular burglary (Pen. Code, § 459). He spent approximately a month in custody awaiting trial on that charge before formal notice was taken of his probationary status. A motion to revoke probation was then filed; another three weeks elapsed (appellant all the while in custody) before the hearing at which appellant’s probation was revoked and he was committed to state prison. The court also declined to institute Welfare and Institutions Code section 3051 proceedings, since it did not appear that appellant was a narcotics addict or, alternatively, that appellant exhibited the characteristic of “excessive criminality” and was thus unsuitable for section 3051 commitment. The court, pursuant to Penal Code section 2900.5, did grant appellant credit on his prison sentence for the 180 days spent in county jail as a condition of probation, but declined to grant further credit for the time spent in custody awaiting disposition of the new charge, an additional period of approximately 2 months. The district attorney subsequently obtained a dismissal of the new burglary charge.

Appellant first contends that the trial court erred in refusing to institute Welfare and Institutions Code section 3051 proceedings so that appellant might obtain evaluation and treatment of his alleged heroin

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addiction. We note that the judge had before him a probation report which contained, among other things, appellant’s rather extensive arrest and conviction record, as well as prior statements by appellant regarding his drug problem. Appellant testified at the revocation hearing; further information was there adduced regarding the alleged narcotics addiction. Thus, contrary to appellant’s assertion, the trial judge did not make his decision in a vacuum; rather, appellant was found by the judge simply not to come within the language of section 3051, i.e., it did not appear that appellant was either an addict or in danger of becoming one. The judge might also quite reasonably have concluded from appellant’s extensive felony record that he manifested “excessive criminality” and would thus not be a suitable candidate for section 3051 commitment.