Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Luis No. 06HF2428, A. Rodriguez, Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa A. Mandel and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
A jury found Jed Gilchrist guilty on the charge of transporting heroin. Because that charge was not proffered until late in the proceedings, Gilchrist contends the court should have denied the prosecution’s request to amend the information to include it. He also contends the court later erred in failing to consider his suitability for drug treatment. We reject these contentions and affirm the judgment.
FACTS
On December 11, 2006, Gilchrist was stopped and arrested for driving under the influence. During the stop, officers seized 8.7 grams of heroin from Gilchrist and found drug paraphernalia in his vehicle. Gilchrist told the police he had used heroin that day, but he did not admit selling drugs.
Two days later, the prosecution charged Gilchrist with possessing heroin for sale, possessing a syringe, driving under the influence, driving with a blood alcohol content of .08 percent or more and driving on a suspended license. The complaint also alleged five prior prison terms. Gilchrist pleaded not guilty to the charges and denied the allegations.
At the preliminary hearing on January 22, 2007, the officers who arrested Gilchrist testified he committed two traffic violations and was the only person in his car when they pulled him over. Based on all the evidence presented, the court ordered Gilchrist to be held for trial on all charges.
On February 2, the People filed an information against Gilchrist that mirrored the initial complaint. Three days later, Gilchrist was arraigned before Judge Kazuharu Makino. After Gilchrist pleaded not guilty and denied the allegations, Judge Makino assigned the case to Judge Richard King.
Judge King set the trial for March 23, but it was continued and trailed several times after that. On April 5, the case was assigned to Judge Luis Rodriguez, who took up the pretrial motions, including the prosecution’s request to add a new charge of transporting heroin. The prosecutor asserted the charge was proper because it arose from the same facts as the other charges. She said, “[E]verything is contained in the police report. We’re talking about the same substance, heroin, here. This case involves [] driving under the influence and by virtue of that [it] involves [transportation of the] drugs that were found on the defendant [after he was] stopped by the officers.”
The prosecutor also told the court her predecessor on the case, deputy Rahul Gupta, had notified defense counsel of the proposed amendment via email nine days earlier, on March 26. Defense counsel did not dispute this. However, he objected to the proposed amendment “on both federal and state constitutional grounds,” saying “basically it’s a violation of due process . . . with respect to Mr. Gilchrist’s rights. He needs proper notice.” Defense counsel argued, “We’re day 59 of 60 today. At the eve of trial this particular charge is being brought and this charge increases the penalty as to Mr. Gilchrist, it increases his [prison] exposure [by one year]. So I think the court should take into consideration that fact and use its discretion appropriately.”
Defense counsel also questioned the prosecution’s motive for failing to move to amend the information at an earlier time. He said, “My experience has been, at least with Judge Makino, . . . that when all the parties announce ready, they’re going with [] the information [] as it stands. And my experience [] has been he will deny those types of amendments on the eve of trial []. [¶] . . . [T]his is not the appropriate manner in which to amend a complaint. It appears to be some sort of forum shopping. . . . If the People are aware of [an] amendment, . . . they should file it as quickly . . . as possible and not wait, as they did here, to go through two different courtrooms before they finally [do so]. I think that’s an abuse of discretion on behalf of the People, and I would ask the court not to be a part of that particular abuse.”
In response, the prosecutor explained why the information was not amended in Judge King’s courtroom. She said, “I was informed by Mr. Gupta that the court did not wish to arraign the defendant on [the amended] information back when it was [] given to the court because it would require the defendant to be brought up to floor 11 and [the] court was [busy with other matters], so the court at that time did not see it was a [wise] use of resources to bring the defendant all the way up and to arraign him and [instead] decided to allow that to happen in the trial court.” The prosecutor also said she was unaware of any policy that any judge had of denying amendments that are proposed close to trial.
Ruling on the matter, Judge Rodriguez said he was not aware of any such policy either, and he did not think Gilchrist was prejudiced by the prosecution’s timing in seeking to amend the information. He therefore granted the prosecution’s motion to include the charge of transporting heroin. After that, the court asked defense counsel if he wanted a continuance to prepare for the new charge, and he said no. The trial commenced five days later, on April 10. After the prosecution rested its case, Gilchrist pleaded guilty to the misdemeanor charges, leaving only the possession for sale and transportation charges. Gilchrist then took the stand and denied having any intention to sell the heroin that was found in his possession. However, he did admit he was a recovering addict and had used heroin on the day in question. The jury convicted him of transporting heroin, but was unable to reach a verdict on the possession for sale charge, and that charge was eventually dismissed. After finding the prior prison allegations true, the court sentenced Gilchrist to five years in prison.
I
Gilchrist argues the court abused its discretion in allowing the prosecution to amend the information to include the charge of transporting heroin. In so arguing, he accuses the prosecution of misconduct and vindictiveness and asserts he was prejudiced by the late amendment. We find no basis for reversing the judgment.
Gilchrist’s vindictive prosecution argument is based on the assumption that, in seeking to amend the information, the prosecution wanted to punish him for failing to plead guilty at an early stage of the proceedings. However, defense counsel did not raise this issue in the trial court. He did object to the amendment, to be sure, but not on the basis on vindictiveness. Therefore, the claim of vindictive prosecution has been waived. (People v. Edwards (1991) 54 Cal.3d 787, 827.)
Gilchrist’s claim of prosecutorial misconduct is another matter. In opposing the prosecution’s motion, defense counsel argued that forcing Gilchrist to defend against the transportation charge would violate his state and federal constitutional right to due process. He couched his argument in terms of notice and basic fairness and alleged the prosecution abused the system by waiting so long to seek to amend the information. He also accused the prosecution of judge shopping. In so doing, defense counsel fairly established he was alleging prosecutorial misconduct. Therefore, Gilchrist’s claim of prosecutorial misconduct is cognizable on appeal.
The claim is not well developed, however. Rather than pursuing the points he raised below, Gilchrist’s misconduct claim boils down to the allegation that the late amendment gave the state a “tactical advantage.” Gilchrist fails to explain what that advantage was or develop his argument in any fashion. Instead, he launches into an extended discussion of the law on prosecutorial vindictiveness. This indicates his claim of prosecutorial misconduct is tied into the notion of vindictiveness. However, as we have explained, Gilchrist did not raise the issue of vindictiveness below, and therefore he cannot raise it now.
Gilchrist’s broader argument is that the court abused its discretion in granting the prosecution’s motion to amend. The court may allow an amendment to the information at any stage of the proceedings, so long as it does not charge an offense not shown by the evidence taken at the preliminary hearing or prejudice the substantial rights of the defendant. (Pen. Code, § 1009.) “Trial court discretion, in granting a motion to amend, ‘will not be disturbed on appeal in the absence of showing a clear abuse of discretion.’ [Citation.]” (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Gilchrist concedes the charge of transporting heroin was amply demonstrated by the preliminary hearing evidence. However, he maintains the late inclusion of that charge caused him substantial prejudice at trial because he did not have time to prepare for it. Specifically, he asserts that had he known about the charge earlier, he would not have spent so much time testifying about where he drove on the day in question. But the fact is, Gilchrist did not testify until six days after the transportation charge was added. And according to the prosecutor’s undisputed representation, defense counsel was notified of the proposed amendment nine days before that. Therefore, Gilchrist and his defense team had plenty of time to contemplate what he was going to say on the transportation issue.
Gilchrist also discerns prejudice from the fact that simple possession is not a lesser included offense of transportation of a controlled substance. (See People v. Watterson (1991) 234 Cal.App.3d 942, 945-947.) The trial court thought differently at the time it ruled on the motion to amend, but at trial, it correctly refused to instruct on simple possession as a lesser included offense of transportation. Gilchrist contends this deprived him of a defense to the transportation charge, but that is not because the prosecution waited so long to amend the complaint. Gilchrist would have been hard pressed to defend against the charge of transportation no matter when it was filed, given that the transportation element was indisputably established by the core facts of the case. All things considered, Gilchrist’s substantial rights were not prejudiced by virtue of the late amendment to the complaint. Therefore, the trial court did not abuse its discretion in allowing the amendment.
II
Gilchrist also contends the matter should be remanded for resentencing because the court did not understand it could have ordered him to be evaluated for possible commitment to the California Rehabilitation Center (CRC). We disagree.
At the sentencing hearing, defense counsel argued Gilchrist was a drug addict, and it would serve no purpose to send him to prison. He urged the court to suspend imposition or execution of sentence and place Gilchrist on probation so he could participate in a drug treatment program. The court refused. While recognizing Gilchrist’s addiction, the court noted he “has been afforded ample opportunities” to get treatment in the past, and despite this, he has continued to engage in criminal behavior. Not only that, his conduct has gone from crimes of simple possession to the “more egregious” and dangerous conduct shown in this case — transporting narcotics while under the influence of them. Relying on Gilchrist’s criminal history and the escalating nature of his crimes, the court rejected his plea for probation and sentenced him to five years in prison.
“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 . . . 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.” (Welf. & Inst. Code, § 3051.)
Once the court determines a defendant may be an addict, “excessive criminality is the only consideration [the] court should look to for refusing to initiate CRC proceedings.” (People v. Granado (1994) 22 Cal.App.4th 194, 200.) A refusal to initiate CRC proceedings will be upheld on appeal so long as the court’s decision includes “some specification of where [it] was looking in making its finding of excessive criminality.” (Id. at pp. 202-203.) Even if the court fails to make adequate findings in this regard, the error will be considered harmless if the defendant’s criminal background is substantial. (See People v. McLemore (1994) 27 Cal.App.4th 601, 609-610.)
Here, the court noted Gilchrist’s eight prior felony convictions and determined his present transgression reflected an increased dangerousness to society. The court also referenced the probation report, which shows Gilchrist has served several prison terms and has consistently performed poorly on probation and parole. Indeed, he was on parole at the time he committed the present offense. Viewing the record in its entirety, it readily appears the court – aware of Gilchrist’s excessive criminality – made a properly informed decision to reject his request for probation supervised drug treatment. The court’s findings fully justify its failure to initiate CRC proceedings. Moreover, even assuming the court’s findings on this issue were lacking, Gilchrist’s criminal record is of such magnitude that any error was surely harmless. (People v. McLemore, supra, 27 Cal.App.4th at p. 610.) No cause for resentencing has been shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.