Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR220835 & FCR226506
Haerle, Acting P.J.
I. INTRODUCTION
Appellant pled no contest to charges in two separate informations filed against her in 2005; both informations alleged numerous narcotics violations. In sentencing appellant in both cases, the trial court placed her on probation for a term of three years.
In May 2006, appellant was arraigned on charges filed in a third case, also involving alleged drug-related offenses, and was also charged with violating the terms of her probation in the two 2005 cases. After she admitted both of those violations, the court revoked her probation, sentenced her to two consecutive midterms on the two 2005 cases, and dismissed the charges in the 2006 information. Via this appeal, appellant claims the trial court (1) violated the federal Americans With Disabilities Act (ADA) in revoking her probation because she could not enter a particular substance abuse program due to “a medical condition,” (2) erred in sentencing her to the mid-terms, and (3) erred in imposing consecutive sentences. We reject all of appellant’s claims and thus affirm the judgment, the sentence imposed, and the orders revoking probation.
II. FACTUAL AND PROCEDURAL BACKGROUND
On February 14, 2005, the Solano County District Attorney filed an information charging appellant with 11 counts of narcotics-related offenses, including transportation and possession for sale of cocaine, methamphetamine, vicodin, valium and other drugs. (Health & Saf. Code, §§ 11351, 11351.5, 11352, subd. (a), 11359, 11378, 11379, subd. (a), 11360, subd. (b).) Several months later, appellant pled no contest to one of those charges, i.e., that of transportation of cocaine base. On May 31, 2005, the court placed appellant on formal probation for a term of three years.
Three months after that sentence was imposed, i.e., on August 26, 2005, appellant was again charged with six very similar narcotics-related offenses. On September 7, 2005, she pled no contest to, again, transportation of cocaine base and, additionally, driving with a revoked license. On October 17, 2005, the court again placed appellant on formal probation for a term of three years, notwithstanding a probation department report that recommended a state prison sentence. That recommendation was, among many other things, based on appellant’s past “pattern of similar behavior” and because her action “knowingly exposed her children to criminal activity . . . .” The trial court also modified appellant’s probation in the earlier case. In so doing, the court (the Honorable William Harrison) warned appellant that this probationary term was her “last chance,” a warning which appellant specifically acknowledged.
A third narcotics case was filed against appellant in, apparently, May 2006. On July 31, 2006, appellant admitted violating the terms of her probation in the two 2005 cases. A probation revocation and sentencing hearing on the two 2005 cases was held on October 10, 2006 (October 10 hearing); it will be discussed further below. After hearing argument from both counsel, the trial court (now the Honorable Wendy Getty) revoked appellant’s probation in the two 2005 cases, denied continued probation, and sentenced her to two consecutive midterms for a total sentence of five years and four months.
Appellant filed a timely notice of appeal.
III. DISCUSSION
A. The ADA Issue.
Appellant’s counsel devotes the vast majority of her argument on appellant’s behalf to the proposition that the trial court denied appellant’s constitutional rights by sentencing her to state prison because, in so doing, it violated the ADA. This argument fails for a variety of reasons.
In the first place, nothing remotely resembling an ADA issue was raised at the October 10 hearing. Appellant’s trial counsel, referencing a communication from San Francisco’s Delancey Street facility declining to admit appellant, only recited that “she has certain medical problems” and a “medical condition.” The furthest that counsel went in elaborating on that “condition” was to say that she “has seizures,” “cognizant disabilities [and] drug addiction,” and had “ been assessed as borderline retarded.” The only other reference to a disability was in appellant’s counsel’s reference to appellant’s alleged “learning disabilities.”
Further, that counsel’s reference to all these problems was very explicitly not in the course of raising any ADA issue but, rather, strictly in the course of arguing that her client should be continued on probation and not sent to the California Rehabilitation Center (CRC) as both the prosecution and the probation department recommended to the trial court.
From all this, the Attorney General argues waiver and the non-application of the ADA to matters of “judicial administration.” This prompts a 12-page response by appellant on why an alleged violation of the ADA constitutes a non-waivable constitutional issue, the ADA applies to the state’s treatment of imprisoned individuals such as applicants for parole, etc.
It is probably true, as the Attorney General contends, that the ADA issue was waived because it was not raised in the trial court (cf., e.g., People v. Scott (1994) 9 Cal.4th 331, 351-353, 356; People v. Planavsky (1995) 40 Cal.App.4th 1300, 1302 & 1310-1312; People v. Lizarraga (2003) 110 Cal.App.4th 689, 691-692), but this appeal is more properly resolved on a more fundamental principle: an alleged violation of the ADA is not cognizable in the course of a state court’s pronouncement of a criminal sentence because, among other reasons, the consideration of an ADA claim requires a direct and explicit allegation of a violation of that statute.
Both Planavsky and Lizarraga involved the very similar issue of the sentencing of defendants convicted of narcotics offenses without a determination as to whether they should be committed to the CRC pursuant to Welfare and Institutions Code section 3051. Both courts held that this issue was waived if not first raised in the trial court.
The ADA, a civil statute enacted by the Congress in 1990, has as its stated purpose: “(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [¶] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; [¶] (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and [¶] (4) to invoke the sweep of congressional authority including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” (42. U.S.C. § 12101 (b).)
Under section 12132, in subchapter II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132.)
The immediately preceding section, section 12131, defines “public entity” to include “any State or local government” or any department, agency of a state or local government. (42 U.S.C. § 12131 (1).)
In Pennsylvania Department of Corrections v. Yeskey (1998) 524 U.S. 206 (Yeskey), a man sentenced to serve time in a Pennsylvania correctional facility with a recommendation that the time be served in a “Motivational Boot Camp for first-time offenders” was thereafter refused admission to that facility because of “his medical history of hypertension.” (Id. at p. 208.) In affirming the validity of the civil action brought by him under the ADA, a unanimous United States Supreme Court ruled that “the statute’s language unmistakably includes State prisons and prisoners within its coverage.” (Id. at p. 209; see also United States v. Georgia (2006) 546 U.S. 151.)
But no case has ever held, or for that matter even hinted, that in state court criminal sentencing proceedings the real or alleged disabilities of the convicted defendant must be considered by the court––much less, as effectively contended here, even if not raised by him or her. Among other reasons, this is so because, as numerous federal courts have made clear, an ADA claim must be asserted directly in a civil complaint filed by the alleged discriminatee containing several very explicit allegations. Thus, in Thompson v. Davis (9th Cir. 2002) 295 F.3d 890 (Thompson), the Court of Appeals for the Ninth Circuit was presented with a case in which two California inmates had sued “various state officials who have a role in the parole process” alleging that they had been denied “full and fair consideration for parole based on their disability of drug addiction.” (Id. at p. 894.) The federal district court for the Eastern District of California had dismissed the case, but the Ninth Circuit reversed, holding that the case should proceed inasmuch as “parole proceedings constitute an activity of a public entity that falls within the ADA’s reach.” (Id. at p. 899.)
Before reaching that conclusion, however, the Ninth Circuit made clear what is required to be before a court before it can rule on an ADA claim of discrimination: “To state a claim of disability discrimination under Title II, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.” (Thompson, supra, 295 F.3d at p. 895.) Numerous other cases have similarly framed the requirements for asserting a claim for discrimination against a public entity under title II of the ADA. (See, e.g., McGary v. City of Portland (9th Cir. 2004) 386 F.3d 1259, 1265; Jones v. City of Monroe (6th Cir. 2003) 341 F.3d 474, 477; Weinreich v. Los Angeles County Metropolitan Transportation Authority (9th Cir. 1997) 114 F.3d 976, 978-979.)
As is manifest from the record summarized above, none of the mandated elements of an ADA claim on behalf of appellant were ever asserted in the trial court, or any place else for that matter. But that is not surprising, inasmuch as the only proceedings in the trial court involved sentencing of a convicted criminal defendant. We doubt very much that an ADA-based claim of discrimination by a public entity can ever be asserted during the course of a state court criminal sentencing proceeding, because we cannot conceive that Congress ever intended to authorize such a “short-cutting” procedure. However, we need not and do not decide that issue now; we rest our resolution of the ADA claim on the simple fact that nowhere in this record is there anything approaching the required assertion of such a claim by appellant.
If appellant is correct that the mere mention of any sort of physical or mental problems of a convicted defendant in his or her sentencing hearing automatically raises an ADA issue which that court must then and there consider and resolve, the results in terms of both procedural and substantive problems would be nothing short of astronomic.
B. The Mid-Term Sentences.
Appellant’s second contention is, as noted above, that the trial court abused its discretion in sentencing her to the midterms on both of her 2005 convictions. In so arguing, appellant asserts that the court “stated its basis for imposing the mid rather than the lower term was appellant’s criminal record and her violations on the instant matters.” This assertion is flatly incorrect. On the two reporter’s transcript pages before that cited by appellant, the trial court clearly stated that it was imposing “the base term” in the first 2005 case and assured appellant’s trial counsel that it was doing so because “the base time is a presumptive term” and not because of the “information” appellant’s counsel thought it was relying upon, i.e., “the facts of the offense, and the fact about . . . how much time she has already served.” After some comments by the prosecutor, the court went on to explain that it was referring to appellant’s prior criminal record in support of its finding of no “grounds for mitigation.” This it was plainly entitled to do. (See Cal. Rules of Court, rules 4.421(b)(2) through (5).
Which is perhaps the reason appellant does not mention this issue in her reply brief.
There was no abuse of discretion in the midterm selected by the trial court, the term that “must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Cal.Rules of Court, rule 4.420(a).)
C. The Imposition of Consecutive Sentences.
Finally, appellant objects to the imposition of consecutive sentences for the two 2005 offenses, contending in her opening brief that the trial “court failed to offer reasons to support its imposition of a consecutive prison term,” citing Penal Code section 1170, subdivision (c).
The Attorney General responds that this issue was waived, because appellant’s trial counsel never requested a statement by the court for its reasons for imposing consecutive terms, citing People v. Scott, supra, 9 Cal.4th at pp. 352-356.
Appellant responds that this premise is incorrect, because “[w]hen counsel understood that the court intended to impose consecutive terms, counsel argued against the imposition of consecutive terms” and that, therefore, any further objection to the imposition of consecutive terms “would have been futile.” However, the only argument ever made by appellant’s trial counsel was, first, a one-sentence request that the court “consider imposing a concurrent term on [the second 2005] case” followed by another one-sentence argument that, due to appellant’s “cognizant disabilities, her drug addiction, I think that four years is a pretty hefty sentence under the circumstances.”
We cannot agree with appellant that this brief argument, followed a few lines later by the question to the court, “You’re imposing that consecutively?” obviates the requirement of Scott that a request for a statement of reasons for this––and other––sentencing choices must be specifically made in the trial court or else are considered waived on appeal. (See also, People v. Davis (1995) 10 Cal.4th 463, 551-552 (Davis); People v. Gonzalez (2003) 31 Cal.4th 745, 755; People v. Tillman (2000) 22 Cal.4th 300, 302-303.)
In any event, even assuming that a statement of reasons should have been given by the trial court, a review of the entire record in this case, including appellant’s extensive criminal record and admitted violations of probation, strongly suggests it is not reasonably probable that a more favorable sentence would have been imposed in the absence of such error. (See, Davis, supra, 10 Cal.4th at p. 552; People v. Champion (1995) 9 Cal.4th 879, 934, overrules on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.)
IV. DISPOSITION
The judgment, sentence imposed, and orders revoking probation are all affirmed.
We concur: Lambden, J., Richman, J.