Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM031287
RAYE, P. J.Defendant Dale Francis Caldrer pled guilty to evading an officer with willful disregard. The trial court denied probation and sentenced defendant to state prison. On appeal defendant contends that the trial court erred by failing to determine whether he should be referred to the California Rehabilitation Center (CRC) and by failing to make such a referral. (Welf. & Inst. Code, § 3051.) Alternatively, defendant contends that his trial counsel was constitutionally ineffective for neglecting to object to the trial court’s failure to consider and order a CRC referral. We conclude defendant has forfeited the former argument and the latter has no merit. As a separate matter, consistent with our miscellaneous order No. 2010-002, we conclude that defendant is entitled to additional presentence conduct credits.
BACKGROUND
On September 3, 2009, the Butte County District Attorney filed an information charging defendant with four felonies: (1) evading an officer with willful, wanton disregard for the safety of persons and property (count 1); (2) unlawful driving or taking a vehicle with a prior (count 2); (3) petty theft with prior(s) (count 3); and (4) receiving stolen property (count 4). As an enhancement, it was alleged that defendant had served prior prison terms.
On October 20, 2009, defendant pled no contest to the first count, and the remaining counts and allegations were dismissed. On January 11, 2010, defendant filed a motion to withdraw his plea, which was denied. On February 9, 2010, the trial court held a sentencing hearing, during which defendant argued for probation and enrollment in the “Jerico Project, ” a drug rehabilitation facility located in the San Francisco Bay Area. The court denied probation, sentenced defendant to state prison for three years, and recommended that defendant attend drug or alcohol counseling while at the California Department of Corrections and Rehabilitation. This appeal followed.
DISCUSSION
On appeal defendant claims to be the “proverbial ‘poster child’” for a CRC commitment. Defendant faults the trial court for failing to determine whether he should be referred to the CRC before ordering execution of his prison sentence and for failing to make such a referral. The People contend that defendant did not request a CRC referral, and, in any event, sentencing defendant to prison without a CRC referral was legally proper.
Welfare and Institutions Code section 3051 provides in pertinent part: “Upon conviction of a defendant for a felony, or following revocation of probation previously granted for a felony, and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.” As the parties acknowledge, CRC is the “narcotic detention, treatment, and rehabilitation facility” referred to in the statute. Whether a defendant is to be referred to the CRC is a matter within the trial court’s discretion. (People v. Masters (2002) 96 Cal.App.4th 700, 703-704; People v. Moreno (1982) 128 Cal.App.3d 103, 107.)
I. Forfeiture
The record reveals that defendant did not raise the issue of a CRC commitment in the trial court. A defendant’s failure to raise the issue of a CRC commitment in the trial court forfeits a claim on appeal that the trial court erred in failing to determine whether a CRC referral was warranted. (People v. Lizarraga (2003) 110 Cal.App.4th 689, 691-692 (Lizarraga); see also People v. Planavsky (1995) 40 Cal.App.4th 1300, 1302, 1310-1312 (Planavsky) [holding same].) Defendant raises several arguments against forfeiture. None are persuasive.
Defendant contends that forfeiture should not apply here because it appears the trial court “forgot” about a CRC commitment and he “should not be punished” for the trial court’s oversight. According to defendant, he had no meaningful opportunity to object to the trial court’s dereliction. We are not persuaded. The rule of forfeiture expresses a policy that courts should be apprised of possible errors to permit corrective action at the earliest opportunity. Planavsky applied forfeiture despite the fact that the lower court there may have “simply forgotten” about a CRC referral. (Planavsky, supra, 40 Cal.App.4th at pp. 1305, 1310-1311.) Indeed, there, like here, the trial court made no finding on the topic and “no one [including the court] mentioned” a CRC commitment at the trial court level. (Id. at p. 1305.)
As explained in Planavsky: “requiring the defendant to make a [CRC] request [in the first instance] accords with the basic rules of appellate procedure. The classic formulation is that it is ‘unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, p. 321.) That rationale certainly applies to the stratagem of keeping mum about the possibility of civil commitment and then, if one is sent to prison, raise it on appeal. The tactic essentially sandbags the sentencing court.” (Planavsky, supra, 40 Cal.App.4th at p. 1312.) Here, defendant was permitted to present oral argument at the outset of his sentencing hearing and thus had a meaningful opportunity to request a CRC referral. Yet, he stayed “mum” about a CRC commitment and instead pressed for probation and enrollment in the Jerico Project. Having not requested a CRC commitment in the trial court despite having had occasion to do so, he cannot now claim, for the first time on appeal, that the trial court erred for failing to consider whether a CRC referral was warranted.
Not only was there a meaningful opportunity to request a CRC referral at the outset of the sentencing hearing, but as Planavsky recognizes, there is also “some window” after a sentence is announced, and before execution of the judgment, to bring the purported error to the trial court’s attention. (Planavsky, supra, 40 Cal.App.4th at p. 1312, fn. 14.)
Defendant also contends that finding forfeiture here would frustrate the legislative intent behind Welfare and Institutions Code section 3051, which he claims is to “provide treatment for those addicted or in danger of becoming addicted to narcotics.” Planavsky and Lizarraga rejected similar arguments. As stated in Planavsky and reiterated in Lizarraga, “there is no necessary relationship behind a policy in favor of rehabilitation and a mandate that a request for CRC commitment may be raised for the first time on appeal.” (Planavsky, supra, 40 Cal.App.4th at p. 1313; Lizarraga, supra, 110 Cal.App.4th at p. 692.) These words are equally applicable here and dispense with defendant’s policy argument.
Under Lizarraga and Planavsky, defendant has forfeited his claim on appeal that the trial court erred in failing to determine whether he should be referred to the CRC and in failing to make such a referral. Accordingly, we do not address the merits of his claim.
II. Ineffective Assistance of Counsel
As an alternative argument, defendant suggests that his counsel in the trial court was ineffective for failing to raise the issue below. We disagree. To prevail on this claim, defendant must show that his trial counsel’s representation fell below an objective standard of reasonableness and, but for counsel’s error, there is a reasonable probability of a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693-694, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Moreover, on direct appeal, a defendant advancing an ineffective assistance of counsel claim is not entitled to relief if the record does not show why counsel acted or failed to act in the challenged manner unless there is no satisfactory explanation for counsel’s conduct or counsel was asked for an explanation and failed to give one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; Lizarraga, supra, 110 Cal.App.4th at p. 693.)
Here, there are several plausible reasons for counsel’s failure to raise the issue of a CRC commitment. At sentencing, defense counsel indicated that defendant had a son and that defendant wanted to be more involved with his son’s life. Counsel therefore may have believed that probation coupled with the Jerico Project would give defendant greater flexibility than a CRC commitment and put him in a better position to visit and foster a relationship with his son. Or, counsel could have believed that “defendant's record and probation report indicate[d] such a pattern of criminality that [defendant did] not constitute a fit subject for commitment....” (Welf. & Inst. Code, § 3051.) The record reveals that defendant had three prior felonies and numerous probation and parole violations. Finally, “defendant might have indicated he did not want a CRC commitment for reasons relating to the programs offered by CRC, [or] the different conditions of confinement.” (Lizarraga, supra, 110 Cal.App.4th at p. 693.)
Ineffective assistance of counsel is not established by the record.
III. Presentence Conduct Credits
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendants to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010 (Sen. Bill No. 3X 18), apply retroactively to their pending appeals and entitle them to additional presentence credits. We would conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)
On September 28, 2010, the Legislature enacted Senate Bill No. 76, which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective immediately, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 when the person served an odd number of days in presentence custody. Senate Bill No. 76 also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (See Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1; Pen. Code, § 4019, former subd. (e), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
The amendment to Penal Code section 2933, effective September 28, 2010, which now supersedes the Penal Code section 4019 amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded that the January 25, 2010, amendments to Penal Code section 4019 applied to defendants sentenced prior to that date, we similarly conclude that the rate now provided in Penal Code section 2933 applies retroactively to all appeals, such as defendant’s, pending as of September 28, 2010.
Senate Bill No. 76 also amends Penal Code section 4019 to reduce the amount of presentence conduct credits earned by qualifying prisoners. With the enactment of Senate Bill No. 76, the calculation of such credits is now based on the rate that existed prior to Senate Bill No. 3X 18, which increased the rate. (Pen. Code, § 4019, subds. (b), (c) & (f), as amended by Stats. 2010, ch. 426, § 2.) However, this amendment applies prospectively only, i.e., to sentences imposed on or after September 28, 2010. (Pen. Code, § 4019, subd. (g).)
As defendant does not have a present or prior conviction for a “serious” or “violent” felony and is not subject to registration as a sex offender, he is entitled to the presentence conduct credits now provided for in Penal Code section 2933, subdivision (e). (Pen. Code, § 2933, subd. (e)(1) & (3), added by Stats. 2010, ch. 426, § 1.) Consequently, defendant, having served 189 days in actual presentence custody, is entitled to 189 days’ conduct credit. This gives defendant a total of 378 days’ credit, rather than the 377 days’ credit previously awarded.
DISPOSITION
The judgment is modified to award defendant 189 days’ conduct credit for a total of 378 days’ credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., BUTZ, J.