People v. Miller

LILLIE, J. Defendant, on parole from the state prison on a prior felony conviction, was charged with the sale of heroin (§ 11503, Health & Saf. Code). The cause was submitted on the transcript of the testimony taken at the preliminary hearing ; additional testimony was taken. The trial court found defendant guilty. Thereafter on February 17, 1966, upon defendant’s request, criminal proceedings were adjourned and the ease was certified to department 95 for proceedings under section 3051, Welfare and Institutions Code. On March 8, 1966, an order was entered therein finding defendant was in imminent danger of becoming a narcotic addict and committing him to the Director of Corrections, California Rehabilitation Center. He was received at the center on March 11, 1966, and on April 26, 1966, defendant's parole was revoked by the Adult Authority and he was ordered returned to the state prison. Thereafter on May 26, 1966, the superintendent of the California Rehabilitation Center reported to the trial judge that he evaluated defendant as not a fit subject for treatment at the center; on his certification defendant was returned to the superior court where the proceedings in department 95 were dismissed (June 3, 1966) and criminal proceedings were reinstated. On June 22, 1966, defendant was sentenced to state prison; he appeals from the judgment.

Appellant’s main point is that the trial court erred by imposing sentence at a time when he had been improperly rejected from the narcotics rehabilitation program. He says his rejection was improper because the superintendent’s conclusion that he was not a fit subject for treatment “was not based on excessive criminality or for other relevant reasons” and “was made prior to the expiration of the sixty (60) day minimum period” as prescribed by section 3053, Welfare and Institutions Code.

Inasmuch as the record on appeal contains no documents indicating the superintendent’s reason for concluding that defendant was not a fit subject for treatment at the center or when defendant was rejected, and appellant’s exhibits show only that he was committed to the center on March 8, 1966, and his parole was revoked on April 26, 1966, on our own motion we have augmented the record with the superior court file to include the information necessary for a fair determination of this case. In his brief appellant has detailed certain facts concerning what he claims occurred between the time he was received at the center and returned to the court, [226]but inasmuch as they are not substantiated by even the augmented record, they are not properly before us. (People v. Parriera, 237 Cal.App.2d 275, 286 [46 Cal.Rptr. 835]; People v. Carr, 229 Cal.App.2d 74, 76 [40 Cal.Rptr. 58].)