Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06NCR04148
HULL, J.
Defendant Jerry Lee Allen II, appeals after pleading guilty to burglary. He contends the trial court abused its discretion failing to initiate proceedings under Welfare and Institutions Code section 3051 for admission to the California Rehabilitation Center (CRC) without an adequate statement of reasons. We affirm the judgment.
Facts and Proceedings
Defendant was charged with two counts of burglary and one count of vehicle theft, after he and his cohort burglarized a friend’s house. Defendant pleaded guilty to one count of burglary and the other charges were dismissed as part of a plea agreement.
The probation officer’s report recommended defendant be referred to CRC based on defendant’s statements that he had a drug problem, in that he reported he used cocaine, prescription drugs, and that he smoked a lot of marijuana. The probation officer’s report also showed defendant had 14 prior misdemeanor convictions within the previous three years, including numerous convictions for driving on a suspended license and being a habitual traffic offender, two convictions for domestic violence and one conviction for cruelty to or endangerment of a child.
At sentencing, defense counsel requested defendant be granted probation, arguing defendant committed the current offense because his cohort threatened him. Alternatively, counsel argued that CRC was appropriate because defendant has a drug problem and the current conviction was his first felony. The prosecutor sought a prison term and asked the court not to refer defendant to CRC because of defendant’s excessive criminality.
After argument, the trial court began by emphasizing that defendant has had 14 grants of probation and the court did not believe there was any chance defendant would succeed on probation this time. The trial court noted that there was nothing in the file to demonstrate that defendant has a drug problem except defendant’s self-serving statement. The court explained, “Now I’m being told that he’s got a drug problem. Well. I don’t see anything in this file other than his statement that he’s got a drug problem. He may have. I don’t know.” The court further noted that none of defendant’s 14 prior convictions were drug related.
The trial court then re-emphasized, at length, defendant’s criminal record and all the grants of probation upon which defendant had failed. The court found of particular note that defendant was on two grants of probation for violent offenses at the time he committed his current offense. The trial court concluded that there were no unusual circumstances and defendant was not suitable for probation.
The trial court then proceeded to selection of the appropriate prison term. In doing so, the court indicated that if it had more guidance regarding Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], it would probably impose upper term and questioned the probation report’s assumption that it would be the mid term. The court commented, “[m]aybe because it’s Mr. Allen’s first felony offense. I can accept that as a good rational reason for that. Maybe they were thinking, ‘Well, if he went to CRC the four years is under their--their self-imposed lid for CRC,’ but I’m finding he’s not eligible for CRC.” After imposing the mid term of four years, the court then asked, “Anything further?” Defense counsel responded, “No, your Honor.”
Discussion
Defendant contends the trial court abused its discretion in finding him ineligible for CRC without initiating Welfare and Institutions Code section 3051 proceedings and without an adequate statement of reasons. We find no reversible error.
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.”
The trial court’s application of this statute involves a two-step process. (People v. Granado (1994) 22 Cal.App.4th 194, 200.) First, the trial court must determine if the defendant is an addict or is in imminent danger of becoming an addict. If the trial court makes this preliminary determination in the affirmative, it must initiate CRC commitment proceedings, unless the court finds that defendant’s record indicates such a pattern of criminality that he does not constitute a fit subject for commitment. (Ibid.; People v. McGinnis (2001) 87 Cal.App.4th 592, 595.) The determination involves a qualitative judgment by the trial court “whether the defendant’s 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.)
Here, defendant first presumes that the trial court found him ineligible because it did not believe he was actually addicted or in danger of becoming addicted to drugs. He argues that his statements that he was addicted were sufficient to require the court to initiate proceedings.
While the trial court did question the sincerity of defendant’s claim that he was addicted to drugs, the trial court’s finding that he was ineligible for CRC appears based on his excessive criminality. Moreover, since the record discloses facts which adequately support denying initiation of CRC proceedings based on defendant’s excessive criminality, the trial court’s decision is presumed to be based on those facts. (People v. McLemore (1994) 27 Cal.App.4th 601, 609-610.)
In determining a “pattern of criminality,” the trial court may consider a defendant’s prior convictions, his performance on probation or parole, and the circumstances of his current offense. (People v. Masters (2002) 96 Cal.App.4th 700, 704.) Here, the trial court repeatedly referred to the numerous unsuccessful grants of probation defendant had received and found it “[o]f particular note” that defendant was “on probation on two crimes of violence at the time he committed these offenses.” The court also found his current offense was egregious in that defendant took advantage of the trust of a friend when he burglarized the friend’s home.
Contrary to defendant’s secondary contention, the record supports the trial court’s factual finding of excessive criminality. The probation report indicates defendant had sustained 14 convictions, out of four different counties, in the three and one-half years leading up to his current offense. Defendant had seven convictions for driving without a license, three convictions of being a habitual traffic offender, one conviction for embezzlement, two convictions for domestic violence on a spouse or cohabitant, and one conviction for child cruelty or endangerment. In addition to receiving numerous grants of probation, defendant had been ordered to serve time in jail for his offenses on several separate occasions. Defendant was on two grants of probation (for domestic violence and child cruelty) when he committed the current offense of burglarizing his friend’s home. We find no abuse of discretion in the finding that evaluation for commitment to CRC was inappropriate due to defendant’s excessive criminality. (See People v. Masters, supra, 96 Cal.App.4th at p. 705.)
Finally, defendant contends that the trial court’s failure to initiate CRC proceedings based on his excessive criminality was error because the trial court did not adequately state its reasoning on the record in this regard.
While a statement of reasons for denying CRC is mandatory (Pen. Code, § 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(9)), we disagree with defendant that the trial court in this cased failed to state sufficient reasons on the record. The 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 defendant’s prior convictions, his prior performance on probation or parole, the nature and seriousness of the current offense, or some other factors evidencing criminality?” (People v. Granado, supra, 22 Cal.App.4th at pp. 202-203.) Here, as set forth herein, the trial court more than adequately indicated that it had considered the probation report, defendant’s numerous criminal offenses, defendant’s dismal performance on 14 grants of probation, and the nature of his current offense. The trial court’s statement provided sufficient reasoning to establish it was not arbitrarily conceived and to permit review on appeal. (See People v. Lock (1981) 30 Cal.3d 454, 459.)
In any event, defendant has forfeited any contention that the trial court’s statement of reasons was inadequate, as he did not object or request the trial court elaborate on its reasoning. The forfeiture doctrine applies to “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly . . . misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) If defendant was concerned that the trial court did not make an adequate assessment of his fitness for CRC or adequately explain its reasoning, he could have brought it to the trial court’s attention and had it resolved.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., NICHOLSON, J.