Opinion
F055281
2-10-2009
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WAYNE COLEMAN, Defendant and Appellant.
Linda Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
A jury convicted appellant, Michael Wayne Coleman, of second degree burglary (Pen. Code, § 459). In a separate proceeding, the court found true four prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). On April 24, 2008, the trial court denied Colemans request to be evaluated for a commitment to the California Rehabilitation Center (CRC). On appeal, Coleman contends the court abused its discretion when it denied his request to be evaluated for a CRC commitment. We will affirm.
FACTS
On January 5, 2008, Petr Dorohov parked his tractor trailer in Modesto while he visited his sister. When his brother-in-law drove him back to the trailer, they discovered the passenger-side window broken and Coleman inside the cab. Coleman attempted to escape but was detained by Dorohov and his brother-in-law.
On April 24, 2008, at Colemans sentencing hearing, the following colloquy occurred after defense counsel asked the court to consider committing Coleman to CRC:
"THE COURT: He has already been to CRC once before.
"[DEFENSE COUNSEL]: Your honor, I think the Court pulled him out, and he might still be eligible for that.
"THE COURT: Im not sending him to CRC due to his criminality. He has been there once before. Im not sending him to CRC."
Later during the hearing the court reiterated:
"I am not going to refer this matter to CRC. He has been to CRC once before. He has excessive criminality, so its not going to be CRC."
The court then sentenced Coleman to an aggregate six-year term, the middle term of two years and four consecutive one-year prior prison term enhancements.
DISCUSSION
Coleman contends the court abused its discretion by its failure to initiate CRC proceedings because it did not proffer adequate reasons for doing so. Respondent contends that Coleman forfeited this issue on appeal. We agree with respondent.
"Section 3051 provides: `Upon conviction of a defendant 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 defendants record and probation report indicate such pattern of criminality that he or she does not constitute a fit subject for commitment ....
"... If the trial court finds that a defendant is addicted or in danger of becoming addicted, it must suspend execution of sentence and order commitment proceedings unless it finds that the defendant is unsuitable for commitment. [Citation.] In the determination of a `pattern of criminality, the trial court may consider a defendants prior convictions, his performance on probation or parole, and the circumstances of the present offense. [Citation.] `[E]xcessive criminality is the only consideration a sentencing court should look to for refusing to initiate CRC proceedings. [Citation.]
"... When a trial court decides not to order the initiation of commitment proceedings, it must provide a statement of reasons. [Citations.] `[A]t a minimum the required statement of reasons must include some specification of where the court was looking in making its finding of excessive criminality.... [W]as it looking at the defendants prior convictions, his prior performance on probation or parole, the nature and seriousness of the current offense, or some other factors evidencing criminality? [Citation.] The trial court may not `"parrot" the statutory language when refusing to initiate commitment proceedings. [Citation.]" ( People v. Jeffery (2006) 142 Cal.App.4th 192, 195-196.)
Here, it appears the court did not comply with the requirements of Jeffrey because in refusing to initiate CRC proceedings the court simply stated that it was "due to his excessive criminality." However, under People v. Scott (1994) 9 Cal.4th 331, 356 "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." Notwithstanding Scotts forfeiture rule, Coleman cites People v. Sharp (2003) 112 Cal.App.4th 1336, to contend he did not forfeit this issue on appeal by his failure to object to the trial courts failure to state adequate reasons for not initiating CRC proceedings. He also contends that no objection was necessary to preserve this issue on appeal because an objection would have been futile. We will reject these contentions.
In Sharp, the People argued that the defendant forfeited his right to argue on appeal that Proposition 36 applied to cultivation of marijuana for personal use by his failure to raise this issue in the trial court. In rejecting this argument the Sharp court held, "[In the trial court the] defendant raised the issue that he should be sentenced under Proposition 36. That was adequate to preserve the issue for appeal." (People v. Sharp, supra, 112 Cal.App.4th at p. 1339.) Sharp is easily distinguishable because in that case the trial court was not required to state reasons for not sentencing the defendant pursuant to Proposition 36. (See Pen. Code, § 1210.1, et seq.)
We also reject Colemans contention that an objection would have been futile. An objection may or may not have resulted in the court referring him for a CRC evaluation. However, it would have alerted the court that it needed to state reasons for its decision not to initiate CRC proceedings and it should have resulted either in the initiation of these proceedings or a refusal to initiate them that was supported by the requisite reasons. Thus, in accord with Scott we conclude that Coleman forfeited any error in the courts failure to state adequate reasons for not initiating CRC proceedings by his failure to object in the trial court.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Levy, J., and Kane, J.