Hanif Saladin Abdullah (Abdullah) appeals, following his plea of guilty to receiving stolen property in violation of Penal Code section 496.
By complaint filed October 23, 1990, Abdullah was charged with receiving stolen property in violation of section 496, and it was also alleged pursuant to section 667.5, subdivision (b) that he had served a prison term on a previous conviction for residential burglary, and had not been free from custody for five years.
In municipal court on November 2, 1990, Abdullah entered a plea of guilty to the section 496 charge on condition the section 667.5, subdivision (b) enhancing allegation be struck. Abdullah asked that a sentence pursuant to section 1170.9
At sentencing on November 30, 1990, the court told Abdullah a section 1170.9 commitment was not possible, imposed the middle term of two years for the section 496 conviction, and suspended criminal proceedings for an examination to determine if Abdullah was a drug addict or in imminent danger of becoming such.
On June 21, 1991, the court imposed the two-year sentence earlier ordered. Abdullah's request he be granted credits under section 2933 for the CRC time on a "one for one," rather than a "two for one" basis was denied. Timely notice of appeal was thereafter filed.
I. Section 2933 Credits for Time at CRC
In the cited decision, Division Two of this court resolved the question of whether equal protection required providing CRC committees, as well as state prison inmates, with "worktime" credits pursuant to section 2933. The court rejected Mabie's claim, finding "a compelling justification for limiting section 2933 worktime credits to state prison inmates." (In re Mabie, supra, 159 Cal. App.3d at p. 308.) Abdullah now argues these and other decisions "though not directly on point, indicated that appellant should have been awarded the credits because of his right to equal protection under the law." Not so.
Abdullah attempts to distinguish the holding in Mabie from his situation because Abdullah was excluded from CRC. The distinction cannot be supported.
II. Section 1170.9 Placement as a Vietnam Combat Veteran
In this case, the probation officer's report noted that Abdullah "did not mount a defense in this case but rather pled early, with the intention that he might be committed to a Federal facility, which currently have the best drug programs around. [Abdullah] felt he would qualify for this program pursuant to Section 1170.9 of the Penal Code which allows federal custody for Vietnam veterans in lieu of state prison." The report goes on to state that when the Western Regional Office of the Federal Bureau of Prisons was contacted, however, it was discovered that section 1170.9 was "an unenforceable law" because no programs or statutes exist providing for the receipt and custody of convicted state felons by federal authorities.
In the absence of any determination that section 1170.9 is illusory, appellate courts have responded to futile requests, such as the remands ordered in several cases where, as here, failure to consider a section 1170.9 placement is asserted. (People v. Bruhn, supra, 210 Cal. App.3d at pp. 1200-1201; People v. Ruby, supra, 204 Cal. App.3d at p. 469; People v. Enriquez (1984) 159 Cal.App.3d 1, 7 [205 Cal.Rptr. 238]; People v. Galvan (1984) 156 Cal.App.3d 144, 146-147 [202 Cal.Rptr. 594]; People v. Lara, supra, 155 Cal. App.3d at pp. 576-577.) Until such time as "federal law authorizes the receipt" into "appropriate federal programs" of Vietnam combat veterans convicted of a felony, which is not now possible,
In accord with the purposes of section 1170.9, those Vietnam combat veterans suffering from substance abuse or psychological problems as a result of that service who are otherwise eligible for probation may and should be considered for placement, as a condition of probation, in local treatment programs which are designed to deal with their peculiar problems. Those Vietnam combat veterans who are ineligible for probation and who are therefore sentenced to state prison, however, must await (as they have since 1982) the enactment of appropriate federal legislation before the intended purpose of section 1170.9 may be achieved.
The question remains whether the illusory nature of the alternative purportedly offered by section 1170.9, which has not heretofore been judicially determined, was prejudicial in this case. It was not. Notwithstanding the fact Abdullah sought in this case to be sentenced pursuant to section 1170.9, which we know now was not possible, on this record there is no basis for reversal. While Abdullah hoped to be placed in federal custody, he was at no time informed this was more than a mere possibility, and at the time Abdullah entered his guilty plea herein he knew the court would request the probation officer to try to place him under section 1170.9, but that such placement was uncertain at best.
In these circumstances the illusory nature of the section 1170.9 option was unrelated to the decision to plead guilty. The trial court did everything possible to comply with its promise to Abdullah, and the fact the federal programs described in section 1170.9 do not exist means that the trial court's refusal to order such a placement, under the clear statutory language conditioning such placement on the existence of such programs, could not have been, and was not, error.
The judgment is affirmed.
Work, Acting P.J., and Froehlich, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 13, 1992.
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Dear Mr. Motley:
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Dear Mr. Kelly:
Section 1170.9 is addressed only to those Vietnam veterans "convicted of a felony who would otherwise be sentenced to state prison." The statute unequivocally states that as an alternative to commitment to state prison, "the court may order the defendant committed to the custody of federal correctional officials for incarceration for a term equivalent to that which the defendant would have served in state prison." (Ibid.) "`When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.'" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 800 [268 Cal.Rptr. 753, 789 P.2d 934], quoting Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148], italics in original.) Contrary to counsel's assertion, the specific statutory authority to commit to "federal correctional officials for incarceration" cannot be interpreted to include commitment of those "who would otherwise be sentenced to state prison" (that is, those who would not receive probation) to local, noncustodial programs.
Insofar as courts have mentioned in passing the existence of noncustodial programs (see, e.g., People v. Bruhn, supra, 210 Cal. App.3d at p. 1200, fn. 3, citing People v. Ruby, supra, 204 Cal. App.3d at p. 467) it was not in the context of whether commitment to such programs would be lawful, and those cases are not authority for such a placement. The materials submitted by counsel are thus not relevant to our analysis, and the request for judicial notice thereof is denied.