Opinion
F042869.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID ESCOBAR, JR., Defendant and Appellant.
William A. Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant, David Escobar, Jr., pleaded guilty to one count of receiving stolen property (Pen. Code, § 496) and admitted an allegation that he had previously served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court subsequently sentenced him to a total term of four years.
The sole issue on appeal is whether the trial court properly sentenced appellant. Appellant claims the trial court erred by not referring him for a California Rehabilitation Center (CRC) commitment. We find appellants argument without merit and affirm the judgment.
FACTS
As the facts are not at issue on appeal, we will recount them only briefly. Appellant was arrested after an officer noticed him riding a bicycle matching the description of one that was stolen only a few days earlier. Subsequent investigation revealed that the bicycle was indeed stolen.
DISCUSSION
Appellant Was Properly Sentenced
During sentencing, appellants counsel requested that the trial court refer appellant to CRC arguing that appellant "obviously" had a drug problem, which was the cause of his prior record. The court noted that the cause of appellants prior crimes was that appellant
"is not being responsible with his life. Hes had numerous opportunities to straighten himself out, and he hasnt done so, and now you — I mean, youre struggling here. I realize you have to represent his interests, but youre struggling to make some kind of a request of this Court in opposition to the recommendation of the probation department ...."
Appellants counsel responded that
"as far as the C.R.C. is concerned, you know, youre saying that hes had an opportunity to straighten his life out. Well, I think thats the problem. He cant do it by himself. Hes asking for a program now for C.R.C. I think all of — I know if all of these things — Im not saying theyre not his responsibilities. They certainly are. Its his responsibility that he hasnt got help before, but he hasnt been able to do it on his own, and the — obviously, drugs have a lot to do with his history, and I think
"THE COURT: It might be a reason why, but its not an excuse.
"[Defense counsel]: Its not, but hes asking for the opportunity to have a program to where he can get help to straighten his life out...."
At that point, the trial court stated that it would follow the probation officers recommendation and sentenced appellant to the aggravated term of three years and enhanced the term by one year for appellants prior conviction. Appellant argues the trial court erred in failing to make the requisite findings in denying the CRC referral.
Welfare and Institutions Code section 3051 provides in pertinent part as follows:
All further references are to the Welfare and Institutions Code unless otherwise indicated.
"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 defendants 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."
"A trial courts consideration of this statute involves a two-step process. First, the court must determine `if it appears ... that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics .... Second, if the court makes the preliminary determination of addiction or imminent danger thereof, the court must either suspend execution of sentence and order initiation of CRC commitment proceedings or find the defendant unfit for such commitment." (People v. Granado (1994) 22 Cal.App.4th 194, 200.)
The courts initial determination of whether a defendant is fit for rehabilitative treatment "necessarily involves an assessment, based upon the defendants record and probation report, whether the defendants main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality." (People v. Cruz (1990) 217 Cal.App.3d 413, 421.) The statute vests the trial court with a broad discretion in making this decision, and the trial courts decision will not be disturbed on appeal unless it appears to constitute an abuse of discretion. (Ibid .)
Appellant argues the trial court failed to make any findings relating to section 3051 and urges this court to reverse the cause and remand it to the trial court for further proceedings. We find such action unnecessary.
Appellant argues in his reply brief that the trial court never made the preliminary finding that appellant was addicted to or in imminent danger of becoming addicted to narcotics and claims, for this reason, the cause should be remanded to the trial court. We disagree. There was no dispute at the hearing regarding whether appellant was addicted to drugs, and the probation report indicated that appellant considered himself an addict. In any event, even if the trial court never determined appellant was an addict or in imminent danger of becoming an addict, it is clear that the court considered appellants extensive criminal behavior as a bar from initiating a CRC commitment. Therefore, remand to consider appellants status as an addict is unnecessary.
In People v. Granado, supra, 22 Cal.App.4th at pages 202-203, this court noted that pursuant to California Rules of Court, rule 4.406(b)(10), the trial court is required to state its reasons for not committing a defendant to CRC and failure to do so is error. In the present case, the trial court failed to state its reasons for not committing appellant to CRC. Thus, the trial court erred. However, the error does not necessarily require reversal.
We are aware the court in People v. McGinnis (2002) 87 Cal.App.4th 592, 596-597, held that section 3501 requires the trial court to state exactly what part of a defendants prior criminal history makes him or her unsuitable for a CRC commitment. Subsequently, the court in People v. Masters (2002) 96 Cal.App.4th 700, 706, disagreed with McGinnis, and held the trial court need only give some indication as to where the court was looking in making its finding of excessive criminality. We need not address which standard is proper because the trial court in this case failed to state any reasons for its denial of appellants request. As we will explain, however, the trial courts error in this case was harmless because, unlike McGinnis, the record in this case discloses sufficient facts to support the trial courts finding that appellant was unfit for a CRC commitment.
In People v. McLemore (1994) 27 Cal.App.4th 601 the court was confronted with a situation similar to the present case. There, the defendant requested the court initiate a CRC commitment, and the court denied the request without stating its reasons. (Id. at p. 608.) The appellate court held any error in failing to state reasons for its decision was not prejudicial because the record amply supported a finding that the court believed that the defendants criminal background indicated that he was not a fit candidate for a CRC commitment. (Id . at p. 610.) In reaching this conclusion, the appellate court looked to the comments the trial court made in denying probation. (Id. at p. 609.) The trial court explained that the defendants extensive criminal history, the seriousness of his present offense, and his prior poor performance on probation and parole made him an unsuitable candidate for probation. (Id. at pp. 609-610.) These facts likewise supported a finding that appellants pattern of criminality disqualified him from a CRC commitment. The McLemore court concluded that the trial court "believed defendants extensive criminal background precluded him from CRC commitment. Since the record discloses facts which adequately support the reasons for denying the initiation of CRC commitment proceedings, the sentencing courts choice is presumed to be based on those facts." (Id. at p. 610.) Therefore, the court determined any error was harmless. (Ibid.)
Likewise here, any error in failing to state reasons for the denial of a CRC commitment was harmless. In discussing the request, the trial court noted that appellant had failed to "straighten himself out" despite numerous opportunities to do so. This was a clear reference to appellants extensive criminal history. In sentencing appellant, the trial court discussed appellants criminal history. Appellant had a total of 20 contacts with the adult and juvenile justice systems spanning over 17 years. Seven of those contacts resulted from appellant violating his probation or parole. Appellant served both jail and prison time as a result of his lengthy record. These facts supported the trial courts denial of a CRC commitment and we will presume that the trial courts ruling was based on these facts. (People v. McLemore, supra, 27 Cal.App.4th at p. 610.)
DISPOSITION
The judgment is affirmed.