                            OFFICE OF THE ATTORNEY GENERAL


                                      State of California



                                     JOHN K. VAN DE KAMP


                                        Attorney General



                          ______________________________________

                   OPINION           :
                                     :          No. 89-701
                  of                 :
                                     :          JANUARY 24, 1990
       JOHN K. VAN DE KAMP           :
           Attorney General          :
                                     :
       RODNEY O. LILYQUIST           :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

              THE STATE BOARD OF CORRECTIONS has requested an opinion on the
following question:

               Does a state trial court have the authority to direct the placement of a person
convicted of a crime into in a private work furlough facility that is being operated without a
contract with the county?

                                         CONCLUSION

                A state trial court does not have the authority to direct the placement of a person
convicted of a crime into a private work furlough facility that is being operated without a contract
with the county.


                                           ANALYSIS

               In 1957 the Legislature enacted the Cobey Work Furlough Law (Stats. 1957, ch.
1580, § 1) by adding section 1208 to the Penal Code.1 Section 1208 authorizes the board of
supervisors in each county to determine whether a work furlough program is feasible in the
county. The board then designates a "work furlough administrator" who is responsible for
administering the program and who negotiates a contract with each facility. The statute is
detailed and specific concerning a variety of legislative concerns such as wage rates, work related
injuries, emergency releases, writs of execution upon earnings, employer-employee labor
disputes, personnel training standards, building standards, and inspection of the facilities by the
Board of Corrections.




   1
       All references hereafter to the Penal Code are by section number only.

                                                  1.                                           89-701

               The question presented for analysis is whether a trial court judge may direct the
placement of a person convicted of a crime into a private work furlough facility that is not being
operated under the terms of section 1208. We conclude that a court has no authority to do so.

                Section 12 states:

               "The several sections of this code which declare certain crimes to be
        punishable as therein mentioned, devolve a duty upon the court authorized to pass
        sentence, to determine and impose the punishment prescribed."

In People v. Lara (1984) 155 Cal.App.3d 570, 574, the court stated:

                "Penal Code section 12 imposes a duty upon the sentencing court to
        impose the punishment prescribed by law. (In re Sandel (1966) 64 Cal.App.2d
        412, 415.) A sentencing court has no discretion to deviate from the punishment
        prescribed by statute. (See, e.g., Sandel, supra, at p. 414; People v. Thomas
        (1976) 65 Cal.App.3d 854, 858; People v. Browning (1975) 45 Cal.App.3d 125,
        145; People v. Cheffen (1969) 2 Cal.App.3d 638, 641.)"

Accordingly we must look for statutory2 authority for a trial court to direct placement of a person
convicted of a crime into a private work furlough facility.

                 Section 1208 does not provide such authority. The only authorization it gives to
a trial court is to prohibit the placement of a person in a work furlough facility. "[T]he work
furlough administrator may . . . direct that the person [be employed] unless the court at the time
of sentencing or committing has ordered that the person not be granted work furloughs." (§ 1208,
subd. (a).) Except for this "veto" authority of the trial court, the work furlough administrator3 has
control over the placement of persons into a work furlough facility under the terms of section
1208. (See In re Thomas (1984) 161 Cal.App.3d 721, 727-729; 63 Ops.Cal.Atty.Gen. 33, 34-36
(1980).) In pertinent part, the statute provides:

                "(a) . . . The work furlough administrator may, with the approval of the
        board of supervisors, enter into contracts with appropriate public or nonprofit
        private agencies or private entities to provide a facility and services for the
        housing, sustenance, counseling, supervision, and related services for inmates
        eligible for work furlough. . . . The sheriff or director of the county department
        of corrections, as the case may be, is authorized to transfer custody of prisoners
        to the work furlough administrator to be confined in a facility for the period
        during which they are in the work furlough program.


   2
     The only constitutional provision of relevance to our inquiry is section 5 of article XIV ["The
labor of convicts shall not be let out by contract to any person, co-partnership, company or
corporation . . . ."]. This constitutional prohibition has no application here, since in a work furlough
program the pertinent contract is between the employer and the prisoner. (63 Ops.Cal.Atty.Gen. 33,
36 (1980); see Pitts v. Reagan (1971) 14 Cal.App.3d 112, 116-119.)
   3
     The board of supervisors may choose between "the sheriff, the probation officer, the director
of the county department of corrections, or the superintendent of a county industrial farm or
industrial road camp in the county" or any combination of these public officials as the work furlough
administrator. (§ 1208, subd. (a).)

                                                   2.                                           89-701

           "All privately operated work furlough facilities and programs used for the
       detention of persons sentenced into the custody of the sheriff, the director of a
       county department of corrections, or the chief probation officer, shall be under the
       jurisdiction of, and subject to the terms of a contract entered into with, the work
       furlough administrator. . . . Failure to comply with the appropriate health, safety,
       and fire laws or minimum jail standards adopted by the board may be cause for
       termination of the contract. Upon discovery of a failure to comply with these
       requirements, the work furlough administrator shall notify the privately operated
       program director that the contract may be canceled if the specified deficiencies
       are not corrected within 60 days.

               "......................

               "(b) When a person is convicted of a misdemeanor and sentenced to the
       county jail, or is imprisoned in the county jail for nonpayment of a fine, for
       contempt, or as a condition of probation for any criminal offense, the work
       furlough administrator may, if he or she concludes that the person is a fit subject
       to continue in his or her regular employment, direct that the person be permitted
       to continue in that employment, if that is compatible with the requirements of
       subdivision (d), or may authorize the person to secure employment for himself or
       herself, unless the court at the time of sentencing or committing has ordered that
       the person not be granted work furloughs. . . .

               "(c) If the work furlough administrator so directs that the prisoner be
       permitted to continue in his or her regular employment or educational program,
       the administrator shall arrange for a continuation of that employment or
       education, so far as possible without interruption. If the prisoner does not have
       regular employment or a regular educational program, and the administrator has
       authorized the prisoner to secure employment or education for himself or herself,
       the prisoner may do so, and the administrator may assist the prisoner in doing so.
       ...

              "(d) Whenever the prisoner is not employed or being educated and
       between the hours or periods of employment or education, the prisoner shall be
       confined in the facility designated by the board of supervisors for work furlough
       confinement unless the work furlough administrator directs otherwise. . . .

               ".......................

              "(g) In the event the prisoner violates the conditions laid down for his or
       her conduct, custody, education, or employment, the work furlough administrator
       may order the balance of the prisoner's sentence to be spent in actual
       confinement." (Emphases added.)

               Under section 1208, then, the "placement" role of the trial court is limited to
sentencing the person "to the county jail" if the "person is convicted of a misdemeanor" and
imprisoning the person "in the county jail for nonpayment of a fine, for contempt, or as a
condition of probation for any criminal offense." More precisely, the court sentences the person
"into the custody of the sheriff, the director of a county department of corrections, or the chief




                                                 3.                                           89-701


probation officer." The court does not direct the placement of the person into a work furlough
facility4 or to the custody of the work furlough administrator under the terms of section 1208.

                No other statute deals expressly with the placement of persons into work furlough
facilities. It has been suggested, however, that the general statute governing the granting of
probation may provide the authority for a trial court to place a person into a private work
furlough facility. Section 1203.1 states in part:

                "The court or judge thereof, in the order granting probation, may suspend
       the imposing, or the execution, of the sentence and may direct that the suspension
       may continue for a period of time not exceeding the maximum possible term of
       the sentence, except as hereinafter set forth, and upon those terms and conditions
       as it shall determine. The court, or judge thereof, in the order granting probation
       and as a condition thereof may imprison the defendant in the county jail for a
       period not exceeding the maximum time fixed by law in the case . . . may fine the
       defendant in a sum not to exceed the maximum fine provided by law in the case;
       or may in connection with granting probation, impose either imprisonment in
       county jail, or fine, or both, or neither; shall provide for restitution in proper
       cases; and may require bonds for the faithful observance and performance of any
       or all of the conditions of probation.

               " . . . . In counties or cities and counties where road camps, farms, or other
       public work is available the court may place the probationer in such a road camp,
       farm, or other public work instead of in jail; Section 25359 of the Government
       Code shall apply to probation and the court shall have the same power to require
       adult probationers to work, as prisoners confined in the county jail are required
       to work, at public work. Each county board of supervisors may fix the scale of
       compensation of the adult probationers in that county. In cases of probation the
       court may require as a condition of probation that the probationer go to work and
       earn money for the support of his or her dependents or to pay any fine imposed
       or reparation condition, to keep an account of his or her earnings, to report them
       to the probation officer and apply those earnings as directed by the court.

               ".......................

               "The court may impose and require any or all of the above-mentioned
       terms of imprisonment, fine, and conditions, and other reasonable conditions, as
       it may determine are fitting and proper to the end that justice may be done, that
       amends may be made to society for the breach of the law, for any injury done to
       any person resulting from that breach, and generally and specifically for the
       reformation and rehabilitation of the probationer, and that should the probationer
       violate any of the terms or conditions imposed by the court in the matter, it shall
       have authority to modify and change any and all such terms and conditions and
       to reimprison the probationer in the county jail within the limitations of the
       penalty of the public offense involved. Upon the defendant being released from
       the county jail under the terms of probation as originally granted or any

   4
      Broadly stated "[a] trial court does not have jurisdiction to specify detention in a particular
institution . . . ." (People v. Graham (1978) 83 Cal.App.3d 736, 745; see § 5054; People v. Lara,
supra, 155 Cal.App.3d 570, 574-576; People v. Thomas (1976) 65 Cal.App.3d 854, 858; People v.
Fowler (1976) 62 Cal.App.3d 904, 913-914.)

                                                  4.                                            89-701

         modification subsequently made, and in all cases where confinement in a county
         jail has not been a condition of the grant of probation, the court shall place the
         defendant or probationer in and under the charge of the probation officer of the
         court, for the period or term fixed for probation. . . ." (Emphases added.)5

                "Trial courts are granted broad discretion under Penal Code section 1203.1 to
prescribe conditions of probation" (People v. Richards (1976) 17 Cal.3d 614, 619); however, the
"discretion is not boundless" (People v. Dominguez (1967) 256 Cal.App.2d 623, 626). "In the
first place, the authority is wholly statutory; the statute furnishes and limits the measure of
authority which the court may thus exercise [citations]." People v. Keller (1978) 76 Cal.App.3d
827, 832; see People v. Baumann (1985) 176 Cal.App.3d 67, 76; People v. Baker (1974) 39
Cal.App.3d 550, 559.) The sentencing count's discretion "'must be impartial, guided by "fixed
legal principles, to be exercised in conformity with the spirit of the law."'" People v. Dominguez,
supra, 256 Cal.App.2d 623, 626-627; see People v. Lara, supra, 155 Cal.App.3d 570, 575;
People v. Beach (1983) 147 Cal.App.3d 612, 620-623; People v. Keller, supra, 76 Cal.App.3d
827, 833; People v. Baker, supra, 39 Cal.App.3d 550, 559-560.)

                 Section 1203.1 authorizes a sentencing court to "imprison the defendant in the
county jail" or "to place the probationer in a . . . road camp, farm, or other public work" operated
by the county. Absent from this grant of authority is any reference to a work furlough facility
or to a privately operated program. These express provisions for the detention of a person placed
on probation impliedly preclude other types of placements under the terms of section 1203.1.
(See Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; County of Alameda v. State Bd. of
Equalization (1982) 131 Cal.App.3d 374, 381; Kaiser Steel Corp. v. County of Solano (1979) 90
Cal.App.3d 662, 668.) A court has no authority to confine a person as a condition of probation
unless a statute so provides. (In re Frank (1926) 79 Cal. 659, 660.)

                 The detailed requirements of section 1208 regarding work furlough facilities
explain and circumscribe the more general "reasonable conditions" language of section 1203.1.
The latter is to be read in the context of the former. (See People v. Shirokow (1980) 26 Cal.3d
301, 307; People v. Caudillo (1978) 21 Cal.3d 562, 585; Governing Board v. Mann (1977) 18
Cal.3d 819, 828.) Any other construction of section 1203.1 would emasculate the Legislature's
directives in section 1208. (See 32 Ops.Cal.Atty.Gen. 48 (1950).)

                Our construction of section 1203.1 in light of section 1208 addresses the
Legislature's concerns of adequate personnel training standards, building standards, fire safety
standards, and health standards, among other matters specified in section 1208. This is clearly
what the Legislature had in mind when it amended section 1208 in 1987 (Stats. 1987, ch. 1054,
§ 1) to add the phrases "or private entities" and "or private entity" to the statute. As explained
in the Legislative Counsel's Digest at the time of the 1987 amendment:

                "Existing law authorizes the work furlough administrator of a county, with
         the approval of the board of supervisors, to enter into a contract with appropriate

   5
       Government Code section 25359 provides:

                 "The board may provide for the working of prisoners confined in the county
         jail under judgment of conviction of misdemeanors, under the direction of a
         responsible person appointed by the sheriff, upon the public grounds, roads, streets,
         alleys, highways, firebreaks, fire roads, riding or hiking trails, or public buildings,
         or in such other places as are deemed advisable, for the benefit of the public."

                                                   5.                                              89-701

           public or nonprofit private agencies to provide a facility and certain services for
           inmates participating in a work furlough program.

                    "This bill would also allow the work furlough administrator of a county,
           with the approval of the board of supervisors, to enter into contract with a private
           entity. The bill would also require all privately operated work furlough facilities
           and programs to be under the jurisdiction of, and subject to the terms of a contract
           entered into with, the work furlough administrator. It would require each contract
           to include a provision whereby the private agency or entity agrees to operate the
           facility in compliance with all appropriate state and local building, zoning, health,
           safety and fire statutes, ordinances, and regulations and certain regulatory
           standards established by the Board of Corrections. It would require the private
           agency or entity to select and train its personnel in accordance with standards
           developed by the Board of Corrections for local correctional officers. It would
           provide for termination of a contract for failure to comply with the applicable
           laws and regulatory standards. It would also require all private work furlough
           facilities and programs to be inspected biennially by the Board of Corrections
           unless the work furlough administrator requests an earlier inspection and would
           require the private agency or entity to pay a fee to the board commensurate with
           the costs of the inspection and a fee commensurate with the cost of the initial
           review of the facility." (Emphasis added.)6

The committee reports contain similar language as to the effect of the proposed 1987 amendment.
For example, the report of the Senate Committee on the Judiciary stated at the time of the 1987
legislation:

                   "This bill would authorize the use of private entities for work furlough
           programs, but would subject them to the authority of the county work furlough
           administrator as provided in the terms of their contracts. They would be required
           to comply with all appropriate building, zoning, health, safety and fire standards,
           and must meet minimum jail standards as established by the Board of Corrections.
           Failure to do so may result in termination of their contract."7

                It does appear that in In re Starr (1986) 187 Cal.App.3d 1550, the trial court had
directed the placement of a person into a private work furlough facility that was being operated
without a contract with the county. The Court of Appeal, however, was not presented with the
question of the propriety of the trial court's placement. Rather, it addressed the issue of whether
"conduct credits" were available under the provisions of section 4019.8 Since the Starr decision
is devoid of analysis on the subject of a trial court's placement authority, we apply the rule that
"'cases, of course, are not authority for propositions not there considered.'" (People v. Belleci

   6
     "[I]t is reasonable to presume the Legislature's intent and meaning in amending a statute was
that expressed in the Legislative Counsel's digest [citation]." (Knighten v. Sam's Parking Valet
(1988) 206 Cal.App.3d 69, 77, fn. omitted.)
       7
        "[I]t is well established that reports of legislative committees . . . are part of a statute's
legislative history and may be considered when the meaning of a statute is uncertain." (Hutnick v.
United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465.)
   8
      Section 4019 allows a credit against a person's period of confinement for assigned work and
for "good conduct" as specified in the statute.

                                                      6.                                           89-701
(1979) 24 Cal.3d 879, 888.) "[A]n opinion must be understood in the light of the facts and issues


then before the court . . . ." (Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d


1364, 1376; see Valentine v. City of Oakland (1983) 148 Cal.App.3d 139, 149.) Accordingly,


we do not rely upon the Starr decision in determining the scope of a trial court's authority in


placing a person in a private work furlough facility. (See People v. Ceballos (1974) 12 Cal.3d


470, 481; Canales v. City of Alviso (1970) 3 Cal.3d 118, 127-128, fn. 2; Reed v. Dick (1988) 200


Cal.App.3d 469, 480; Community Cause v. Boatwright (1987) 195 Cal.App.3d 562, 576.)



               In answer to the question presented, therefore, we conclude that a state trial court
does not have the authority to direct the placement of a person convicted of a crime into a private
work furlough facility that is being operated without a contract with the county.

                                            *****




                                                  7.                                          89-701


