OPINION
Assigned by the Chairman of the Judicial Council.
FACTS
The People of the State of California have appealed from an order of the Superior Court of Tulare County granting the petition of respondent, Joaquin Murillo, for writ of habeas corpus and ordering that respondent be released from the custody of the Tulare County Sheriff pursuant to the hold which had been placed upon him by a parole agent of the State of California.
On February 5, 1973, respondent was released from the California Rehabilitation Center to outpatient status. One of the conditions of his release was that he report to his parole agent in the community.
Although the need to report is impressed on all addicts released to outpatient status, respondent did not report. He told the parole agent that he did not report because he knew that he was 'dirty' (using narcotics) and wanted to clean up before reporting.
On February 13, 1973, respondent's parole agent, along with several other agents, visited respondent's home. The premises were searched, and respondent was found hiding in a bedroom closet. Respondent admitted using narcotics, and he had puncture marks on his arms. Respondent was then taken into custody and incarcerated at the Tulare County jail where he remained until February 28, 1973.
On February 13, 1973, an initial emergency report describing the incident was sent by respondent's agent to the parole supervisor in Fresno. An initial case conference was held between the agent and another local agent on the same day.
On February 20, 1973, a full board report was prepared and forwarded to the Narcotic Addict Evaluation Authority (N.A.E.A.).
On February 28, 1973, the N.A.E.A. acted on the initial emergency report and revoked respondent's outpatient status and ordered him returned to C.R.C.
During the hearing on the petition, a parole agent testified that the outpatient is free to contact any parole agent or parole supervisor to present his side of the facts and may send a letter to the N.A.E.A. [110 Cal.Rptr. 495] Moreover, the facts of the violation are fully reviewed upon the addict's return to C.R.C. However, the agent testified that he did not personally inform respondent of his right to present his side of the story to parole supervisors. Respondent was not apprised in writing of the violation of the terms of his release, nor was he given a personal hearing before an impartial tribunal.
The parole agent further testified that addicts released to outpatient status frequently relapse, are returned to the treatment facility for a short period of time and then are released again. He testified that the authorities experiment and attempt to put a man in the community to see if he can make it. If not, the addict is returned for a short period of stabilization, usually 60 days, and then re-released. He stated that it is not unusual for a narcotic addict to make several trips between the C.R.C. and the community before finally abstaining from the use of narcotics.
On February 27, 1973, respondent filed his petition for a writ of habeas corpus in the Tulare County Superior Court alleging that he was confined in the Tulare County jail pursuant to Welfare and Institutions Code section 3151 without due process of law.
On March 1, 1973, after the public defender was appointed to represent respondent, respondent filed a petition for writ of habeas corpus, alleging that he was not afforded an in-community preliminary prerevocation hearing pursuant to the dictates of Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.
On March 8, 1973, after a hearing on respondent's writ, the superior court granted the writ of habeas corpus and ordered that respondent be discharged from the custody of the Tulare County Sheriff. The superior court stayed its order until March 9, 1973.
On March 9, 1973, this court stayed the order of the superior court, and on March 13, 1973, appellant filed its timely notice of appeal.
ISSUE
Does due process require that an addict committed to C.R.C. under Welfare and Institutions Code section 3051, who has been placed on outpatient status, be afforded the procedures described in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, for a 'preliminary hearing' before his involuntary return to C.R.C. for violation of the conditions of his release on outpatient status?
DISCUSSION
Under present California case law, a civil addict on outpatient status from California Rehabilitation Center (C.R.C.) is not entitled to notice or a hearing before suspension of his outpatient status and return to C.R.C. (In re Marks (1969) 71 Cal.2d 31, 77 Cal.Rptr. 1, 453 P.2d 441.)
In re Marks, supra, at pages 45-47, 77 Cal.Rptr. at pages 11-12, 453 P.2d at pages 451-452, states:
'Petitioner next complains that the procedure by which the NAEA suspended his outpatient status deprived him of due process of law. In particular, he contends that he was entitled to (1) notice of the charges upon which the Authority proposed to suspend his outpatient status, (2) opportunity to be heard in rebuttal of those charges, (3) assistance of counsel at such a hearing, and (4) written findings and conclusions to support the action taken by the Authority.
'Petitioner misconceives the nature of these proceedings. As originally enacted in 1961, the first predecessor to Welfare and Institutions Code section 3151 (former Pen.Code, § 6403: Stats.1961, ch. 850, p. 2223) vested in the Adult Authority the administration of the 'parole' (i. e., conditional release) portion of the CRC program. In In re De La O (1963) supra, 59 Cal.2d 128, 144, 28 Cal.Rptr. 489, 499, 378 P.2d 793, 803, we observed that the statute 'provides (and reasonably so) that persons paroled thereunder are 'subject to being retaken and reconfined in the same manner as [110 Cal.Rptr. 496] other parolees are retaken'' (italics added). In the 1963 revision of the narcotics addict commitment law all references in the original statute to 'parole' were changed to 'outpatient status,' and the responsibility for administering the release program was transferred from the Adult Authority to the newly created NAEA. (Former Pen.Code, § 6516; Stats.1963, ch. 1706, p. 3356.) But these changes were largely pro forma, designed to eliminate some of the external 'indicia of criminality' in the original statute that had been noted in De La O. When in 1965 the statute was recodified into the Welfare and Institutions Code for the same reason, the 1963 language dealing with release and retaking of outpatients was transferred intact to the present section 3151. Construing that language, it has recently been noted that 'although the California Rehabilitation Center outpatient is not officially called a parolee, the manner and methods of release and the continuing control and supervision of a parolee from prison and an outpatient from California Rehabilitation Center are strikingly similar,' particularly 'with reference to the respective return to confinement of parole violators and California Rehabilitation Center outpatient violators.' (49 Ops.Cal.Atty.Gen. 11 (1967).)
'As this court has repeatedly recognized, 'it is settled that the Adult Authority may suspend, cancel, or revoke a parole for good cause without notice or hearing. . . .' (Italics added.) [Citation.] Petitioner seeks to distinguish this rule on the ground that it is based on affirmative statutory authorization (Pen.Code, § 3060), while the narcotics addict commitment law is silent on the point. Equally silent in this respect, however, is the statute granting trial courts the analogous power to revoke probation (Pen.Code, § 1203.2), yet we have squarely held that 'there is neither a constitutional nor a statutory right to notice and hearing preceding revocation of probation.' (In re Davis (1951) 37 Cal.2d 872, 873, 236 P.2d 579, 580.) And we have applied the same rule to the exercise of the Adult Authority's power to determine and redetermine sentences. [Citation.] With regard to such special proceeding, in short, there is no statutory right to notice and hearing unless it is specifically granted by the Legislature. Thus had the statute provided for notice and hearing in connection with the suspension of outpatient status by the NAEA, we would have strictly enforced such a requirement [citation]; but in the absence of an express provision to this effect, 'It is not . . . for the courts to revise such a 'creature of statute" as the narcotics addict commitment program [citation].
'Lacking a statutory mandate for notice and hearing, petitioner invokes the due process clause for the Fourteenth Amendment. But as we observed in Davis (37 Cal.2d at p. 873, 236 P.2d, at p. 580), 'The federal Constitution does not give such a right. [Citation.]'' (Fn. omitted.)
The court, at page 48, 77 Cal.Rptr. at page 13, 453 P.2d at page 453, further states:
'Two principal policies are served by the rule authorizing revocation of conditional release without notice and hearing. First, it permits the authorities to promptly return the releasee to custody, thus minimizing the danger that he will further relapse or will go into hiding. (See, e. g., In re Davis (1951) supra, 37 Cal.2d 872, 874-875, 236 P.2d 579.) Second, to hold such a hearing every time a releasee is suspended, for whatever cause, would impose an excessive burden on the machinery of the administration of justice for outweighing any speculative benefit.' (Fn. omitted.)
The court in Marks states that the practical difficulties entailed in giving every C.R.C. releasee 'a full-dress hearing on suspension' are even greater than in the case of Adult Authority parolees because the proportion of persons affected is much [110 Cal.Rptr. 497] higher. (71 Cal.2d at p. 49, 77 Cal.Rptr. 1, 453 P.2d 441.)
Since the opinion was rendered in Marks, the United States Supreme Court has decided Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656.
Contrary to Marks, Morrissey holds that after arrest and detention of a parolee for violation of parole, some minimal inquiry must be conducted at or reasonably near the place of the alleged parole violation, or arrest, as promptly as convenient after arrest and while information is fresh and sources available. Such an inquiry should be seen as in the nature of a 'preliminary hearing' to determine whether there exists probable cause or reasonable grounds to believe that the arrested parolee has committed acts which constitute violations of his conditions of parole. (408 U.S. at p. 485, 92 S.Ct. 2593.) It is further stated in Morrissey that the preliminary hearing should be had before an independent officer, who need not be a judicial officer. (408 U.S. at p. 486, 92 S.Ct. 2593.) The rights to be accorded an alleged parole violator and the duties of the hearing officer are delineated in Morrissey.
'With respect to the preliminary hearing before this officer, the parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, persons who have given adverse information on which parole revocation is to be based are to be made available for questioning in his presence. However, if the hearing officer determines that the informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.' (Morrissey v. Brewer, supra, 408 U.S. at pp. 486-487, 92 S.Ct. at p. 2603.)
It should be noted that the petitioners in Morrissey, John J. Morrissey and G. Donald Booker, admitted parole violations alleged against them to their respective parole officers. Also contrary to the language of In re Marks, supra, 71 Cal.2d 31, 77 Cal.Rptr. 1, 453 P.2d 441; Gagnon v. Scarpelli, supra, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, holds that there is no difference relevant to the guarantee of due process between revocation of parole and revocation of probation. (411 U.S. at p. 782, 93 S.Ct. 1756.) The court held that a probationer, like a parolee, is entitled to a preliminary and final revocation hearing under the conditions specified in Morrissey. (See In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326; People v. Nelson (1972) 8 Cal.3d 463, 105 Cal.Rptr. 314, 503 P.2d 1322; People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313.
In Prewitt the court discharged the order to show cause and denied the petition for habeas corpus because petitioner's parole had been rescinded prior to June 29, 1972, the effective date of Morrissey, supra. (See also In re Edge (1973) 33 Cal.App.3d 149, 108 Cal.Rptr. 757.)
In Vickers the court affirmed the order revoking probation because Morrissey v. Brewer, supra, is prospective in application and the order revoking probation was made prior to the filing of the opinion in Morrissey on June 29, 1972.
In reaching its decision in In re Marks, the court relied heavily upon pre-Morrissey cases and upon the fact that a notice and hearing was not mandated by any statute.
The Marks court further relied on In re Davis (1951) 37 Cal.App.2d 872, 873, 236 P.2d 579, which states: 'We are satisfied [110 Cal.Rptr. 498] that there is neither a constitutional nor statutory right to notice and hearing preceding revocation of probation. The federal Constitution does not give such a right. [Citation.]' However, the Supreme Court has recently indicated in People v. Vickers, supra, that In re Davis is no longer the law. (8 Cal.3d at p. 455, 105 Cal.Rptr. 305, 503 P.2d 1313.)
Appellant contends that the rationale underlying the decision in Marks retains its validity despite the holding in Morrissey v. Brewer. It is further contended by appellant that the comment's made by the California Supreme Court concerning the purposes underlying the civil narcotics treatment program in People v. Myers (1972) 6 Cal.3d 811, 100 Cal.Rptr. 612, 494 P.2d 684, support the conclusion that Morrissey hearings need not be given prior to suspending a narcotic addict's outpatient status.
People v. Myers, supra, 6 Cal.3d 811, 100 Cal.Rptr. 612, 494 P.2d 684, must be viewed in the light of the factual situation before the court in that case. Myers was a C.R.C. outpatient when his home and vehicle were searched by his parole officer and sheriff's deputies without a warrant. Marijuana, amphetamines and narcotic paraphernalia were found. Myers was tried and convicted of illegal possession of the contraband found in the search. Myers appealed from the judgment. The question before the court was whether or not Myers' status as a C.R.C. outpatient made the search without a warrant valid. The court held that it did not and reversed the trial court.
The court in Myers cites People v. Moore (1968) 69 Cal.2d 674, 681-682, 72 Cal.Rptr. 800, 446 P.2d 800. At pages 681-682, 72 Cal.Rptr. at pages 804-805, 446 P.2d at pages 804-805 it is stated in People v. Moore (also a case involving the exclusionary rule):
'There are also general statements in Gonzales and Hill to the effect that to make criminal law restrictions and rules applicable to narcotic addict commitment proceedings would do violence to the legislative policy upon which the law is based and be wholly unwarranted. (People v. Gonzales, supra, 256 Cal.App.2d 50, 55, 63 Cal.Rptr. 581; People v. Hill, supra, 249 Cal.App.2d 453, 459, 57 Cal.Rptr. 561.) Those statements are clearly too broad. Although the commitment procedures set up by the narcotic addict statutes are civil in nature (In re De La O, 59 Cal.2d 128, 156, 28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705), it is clear that the proceeding has some of the features pertinent to a criminal case in view of the facts that the state is the defendant's opponent, that the proceeding is commenced on petition of the district attorney (Welf. & Inst. Code, §§ 3100, 3100.6), that the defendant is entitled to be present at the hearing and to be represented by counsel at all stages of the proceeding (Welf. & Inst.Code, § 3104), that if he is financially unable to employ counsel he is entitled to appointed counsel (Welf. & Inst.Code, § 3104) and that his liberty is ar stake. On the basis of these considerations, we have recognized the criminal features of the proceeding and held that persons involuntarily committed to the program have the right to a free transcript on appeal, a rule ordinarily applied in criminal cases. (People v. Victor, 62 Cal.2d 280, 288-289, 42 Cal.Rptr. 199, 398 P.2d 391.)
'Whether any particular rule of criminal practice should be applied in a narcotic addict commitment proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding. (Cf. In re Gault, 387 U.S. 1, 13-14, 87 S.Ct. 1428, 18 L.Ed.2d 527, 538.) . . .
'It has been suggested that the narcotic addict and that therefore the state does not profit from its wrong when evidence obtained in violation of the Fourth and Fourteenth Amendments is admitted in such a proceeding. Certainly, the proceeding is in part for the benefit of the addict, but this is not determinative. [110 Cal.Rptr. 499] Rehabilitation is one of the prime goals of our penal system, and the fact that the end result of incarceration in jail may be beneficial to the inmate furnishes no ground for the view that the state does not profit by using evidence to obtain criminal convictions. Narcotic addict proceedings involve a loss of liberty, and the proceedings are for the benefit of society as well as the addict. (Welf. & Inst.Code, § 3000; People v. Victor, supra, 62 Cal.2d 280, 292, 42 Cal.Rptr. 199, 398 P.2d 391; People v. Ortiz, 61 Cal.2d 249, 255, 37 Cal.Rptr. 891, 391, P.2d 163; In re De La O, supra, 59 Cal.2d 128, 148, 28 Cal.Rptr. 489, 378 P.2d 793.) Whatever the label that may be attached to those proceedings, it is apparent that there is a close identity to the aims and objectives of criminal law enforcement (cf. People v. One 1960 Cadillac Coupe, supra, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 396 P.2d 706), and we are satisfied that to hold unconstitutionally obtained evidence admissible in the proceedings would furnish an incentive to violate the Fourth and Fourteenth Amendnents. Accordingly, we hold that the exclusionary rule is applicable to such proceedings.'
It is pointed out in People v. Myers, supra, 6 Cal.3d 811, 100 Cal.Rptr. 612, 494 P.2d 684, that a commitment under section 3050 et seq. of the Welfare and Institutions Code is deemed nonpenal and civil in character.
Myers, in discussing outpatient status, states at page 816, 100 Cal.Rptr. at page 615, 494 P.2d at page 687:
". . . His status is more analogous to that of a defendant who has been placed on probation without imposition of a felony sentence. 'The probationer (whose guilt has been established by plea, finding, or verdict, but who has not been sentenced to prison) still retains his ordinary civil rights, unless the court has restricted them' [citations] as a condition of probation. [Citation.] . . .'
'. . . Other courts have analogized outpatients to parolees (cf. Hacker v. Superior Court (1968) 268 Cal.App.2d 387, 390, 73 Cal.Rptr. 907) who can be subjected to a search without a warrant by parole officers (In re Martinez (1970) 1 Cal.3d 641, 647, fn. 6, 83 Cal.Rptr. 382, 463 P.2d 734). However, as an outpatient is neither a parolee nor a probationer, analogies with the status of such persons is an unsatisfactory approach in determining whether outpatients can be subjected to searches by reason of their status alone.'
At page 817, 100 Cal.Rptr. at page 616, 494 P.2d at page 688, the Myers court further states:
'Experience with past programs of this nature has shown that a lack of followup supervision results in a high rate of relapse. [Citations.] The present 'parole' (outpatient) system is designed to overcome this defect by providing the necessary followup through counseling, testing for narcotic use, and immediate return for further treatment if a relapse should occur. . . ."
These pre-Morrissey cases lend little support to the contention of the appellant.
Morrissey makes it clear that it is the liberty of a person which must be considered and which requires due process. The words used to describe a person's status, whether it be parolee, probationer, outpatient or something else, are not a controlling factor.
'We turn to an examination of the nature of the interest of the parolee in his continued liberty. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shown reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family [110 Cal.Rptr. 500] and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases the parolee faces lengthy incarceration if his parole is revoked.
'We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.' (Morrissey v. Brewer, supra, 408 U.S. at pp. 481-482, 92 S.Ct. at p. 2601; fns. omitted.)
The recent case of People v. Pruett (1973) 31 Cal.App.3d 1, at page 4, 105 Cal.Rptr. 204, at page 206, states: '. . . a person committed to the Rehabilitation Center has not been granted any liberty--qualified or unqualified. He has been subjected to incarceration, in a security institution.'
The court, at page 4, stated in footnote 2: 'Whether Morrissey would apply to a return, under section 3152 of the Welfare and Institutions Code, of persons previously granted 'out-patient status' under section 3151 is not before us in this case; we make no attempt to pass on that potential issue.'
It must be borne in mind that a commitment to C.R.C. is a commitment for seven years or more under section 3201 of the Welfare and Institutions Code.
Section 3201 of the Welfare and Institutions Code provides:
The possible deprivation of liberty of a person committed to C.R.C. is for a longer period of time than that served by many persons convicted of serious crimes. Such persons also face incarceration under the [110 Cal.Rptr. 501] criminal law after their discharge from the civil commitment. The number of times a C.R.C. outpatient is returned can affect his date of discharge from the program and might affect what action is taken after his discharge from C.R.C. when criminal proceedings are reinstated.
It seems clear that the qualified liberty of outpatient status is valuable to an outpatient and should be seen as within the protection of the Fourteenth Amendment.
Appellant contends that granting a Morrissey preliminary hearing before suspension of outpatient status would cast an immense burden on the Narcotic Addict Evaluation Authority. It should be pointed out that little, of any, more time would be required to hold a Morrissey preliminary hearing than is necessary to follow the present procedures.
Appellant lastly contends that the outpatient returned to C.R.C. faces an average period of commitment of two months before being again released to outpatient status.
In re Ricks (1973) 31 Cal.App.3d 1006, 107 Cal.Rptr. 786, held that a commitment of a parolee to the Narcotics Treatment and Control unit for treatment (Health & Saf.Code, § 11561, formerly § 11751) requires a Morrissey preliminary due process hearing. The court recognized that such a commitment is not a suspension, cancellation or revocation of parole and that 90 days is the maximum length of such a commitment under Health and Safety Code section 11561. However, the court reasoned that the commitment was a deprivation of the liberty of the parolee which is entitled to due process protection under Morrissey. The court pointed out that the burden of such a hearing upon the state is minimal.
We find that there is no merit to appellant's contention that because the average period of commitment is two months for an outpatient returned to C.R.C. the conditional liberty of an outpatient does not require at least the minimal due process of a Morrissey preliminary hearing.
CONCLUSION
We conclude that a C.R.C. outpatient is entitled to a preliminary hearing as described in Morrissey v. Brewer, supra, before being recommitted to the California Rehabilitation Center. It is ordered that the Narcotic Addict Evaluation Authority hold a preliminary hearing as described in Morrissey v. Brewer, supra, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484, to commence within thirty days after this decision becomes final or release the petitioner. As so modified the order appealed from is affirmed.
GARGANO, Acting P. J., and FRANSON, J., concur.
'The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. Based on the information before him, the officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation.' (Morrissey v. Brewer, supra, 408 U.S. at p. 487, 92 S.Ct. at p. 2603.)
'If a person committed pursuant to this chapter has not been discharged from the program prior to expiration of seven years, the Director of Corrections shall, on the expiration of such period, return him to the court from which he was committed, which court shall discharge him from the program and order him returned to the court in which criminal proceedings were adjourned, or the imposition of sentence suspended, prior to his commitment or certification to the superior court; or, if he was committed pursuant to Article 3, shall discharge him. If however, if appears to the director that such person gives promise that, if his time on the program were extended, he could complete three consecutive years of abstinence from narcotics, the director shall return him to the court from which he was committed, with the recommendation that an extension not to exceed three years be ordered. The court may order such extension. If it declines to do so, it shall, if the person was committed pursuant to Article 3, discharge him, or, if he was committed pursuant to Article 2, return the person to the court in which criminal proceedings were adjourned, or the imposition of sentence suspended, prior to his commitment or certification to the superior court.
'If an extension of the commitment is ordered pursuant to the preceding provisions of this section, the person must be returned to the court and discharged from the program on or before the expiration of 10 years from the date of the original commitment.
'Any other provision of this chapter notwithstanding, in any case in which a person was committed pursuant to Article 3 as a result of such person's having requested the district attorney to file a petition for his commitment, such person must be discharged no later than two years and six months after his commitment.
'No person committed pursuant to Chapter 11 (commencing with Section 6399) of Title 7 of Part 3 of the Penal Code, before the effective date of the 1963 amendments thereto shall be subject to the program for any longer period than the term of his commitment under the law as it read at the time he was committed.
'Nothing in this chapter shall preclude a person who has been discharged from the program from being recommitted under the program, irrespective of the periods of time of any previous commitments.'
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