Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 08F02715 & 08F06457
SCOTLAND, P. J.
On April 3, 2008, defendant Bertrand J. Lewis, Jr., was arrested on outstanding bench warrants. A search incident to arrest revealed he was in possession of 31 rocks of cocaine base, each rock weighing from 0.17 grams to 0.30 grams, for a total of 12.5 grams. Defendant pled no contest to possessing cocaine base for sale (Health & Saf. Code, § 11351.5); as part of the plea agreement, he was placed on probation with various conditions, including that he serve nine months in county jail, and other charges against him were dismissed. (Case No. 08F02715.)
On August 6, 2008, defendant sold two baggies of marijuana to an undercover officer for $20. When he was arrested, defendant was in possession an additional 4.16 grams of marijuana. He pled guilty to selling marijuana (Health & Saf. Code, § 11360, subd. (a)) and possessing other marijuana for sale (Health & Saf. Code, § 11359) (case No. 08F06457), and he admitted violating his probation in case No. 08F02715.
Defendant asked the court to commit him to the California Rehabilitation Center (CRC), claiming he was addicted and had sought assistance prior to his recent custody. Defense counsel submitted a “notification [of] rehabilitation participation status,” stating defendant’s classification at the jail did not allow his participation in a narcotics anonymous program.
The trial court responded that it had gone “out of its way to look at this case in the context of the CRC” and had “spent quite a bit of time looking at the letter that [defendant] wrote, as well as the documentation [defense counsel]” had provided. The court noted it was required to review defendant’s “past record of criminality to determine if he is a fit subject for commitment based on the probation record” and to determine whether “his main problem is drug abuse or criminal orientation, as reflected in a pattern of criminality,” citing People v. McGinnis (2001) 87 Cal.App.4th 592 (hereafter McGinnis). The court then recited defendant’s record: “[O]n November 18, 1994, [he] was committed to the CRC in two separate cases for a total term of three years, in dockets number 93F08807 and 94F06108. [¶] He was initially released from CRC on August 31, 1995, and returned to custody on four occasions prior to being discharged on December 29, 2000. I would note further that he did not satisfactorily complete that.... [¶] Since then, he has seemed to have a series of offenses which suggest to me that the proper exercise of my discretion would be to deny his CRC request.”
Defense counsel asked for an opportunity to present evidence showing that defendant was a fit subject for CRC. Counsel argued that defendant was addicted, that he did not previously complete the program because he was addicted, that he was committed to pursuing treatment, and that he had success in treatment before he was convicted of the current charges.
The court replied: “Do you know what bothers me here, that while he was out to probation in the prior case, the [08F0]2715 case, he is then arrested in the later case, which is the [08F0]6457 case, for selling marijuana. Not using it. Selling it.” Noting that the 33-year-old defendant’s “prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous,” the court sentenced him to a term in state prison.
Defendant appeals, claiming the court abused its discretion in refusing to commit him to CRC. We disagree and shall affirm the judgment, as modified to lift the stay on the $400 probation revocation fine imposed pursuant to Penal Code section 1202.44 in case No. 08F02715.
DISCUSSION
I
When a trial court finds that a defendant is addicted or in danger of becoming addicted to an illicit drug, it must suspend execution of sentence and order commitment proceedings unless it finds that the defendant is unsuitable for commitment due to a pattern of criminality. (Welf. & Inst. Code, § 3051.) “[E]xcessive criminality is the only consideration a sentencing court should look to for refusing to initiate CRC proceedings.” (People v. Granado (1994) 22 Cal.App.4th 194, 200, orig. italics.) In determining a “pattern of criminality,” the court may consider a defendant’s prior convictions, his prior performance on probation or parole, and the facts underlying the present offense. (People v. Masters (2002) 96 Cal.App.4th 700, 703-704, 706.)
“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 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?’ [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, 196; People v. Granado, supra, 22 Cal.App.4th at pp. 201-202.)
“A trial court’s preliminary determination under section 3051 of a defendant’s fitness for rehabilitative treatment necessarily involves an assessment, based upon the defendant’s record and probation report, whether the defendant’s main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality. Because this is inherently a qualitative judgment on the available information, the statute invests the court with ‘a broad discretion which will not be disturbed on appeal in the absence of abuse.’ [Citations.]” (People v. Cruz (1990) 217 Cal.App.3d 413, 421.)
Here, there appears to have been no dispute that defendant was addicted to crack cocaine and marijuana. Thus, the court proceeded to the second step and properly performed the required assessment. The court’s statement was adequate, and the probation report supports the court’s findings with respect to defendant’s criminal history. The 33-year-old defendant’s juvenile record included petty theft, escape, and receiving stolen property. Besides the current matters, defendant’s adult convictions included a 1993 conviction for the sale of cocaine base and a 1994 conviction for possession of cocaine base. He violated probation and was committed to CRC. In 1995, he was released from CRC but returned to custody on four occasions. He also had eight misdemeanor convictions from 1994 through 2004, including false identification to an officer, petty theft, resisting arrest, petty theft with a prior, and driving on a suspended or revoked license, for which he received jail time on each.
Defendant’s reliance upon McGinnis is misplaced. McGinnis found that a trial court abused its discretion by failing to articulate a proper basis or to perform a proper assessment. The defendant in McGinnis was young (22 years of age) and addicted for a long time; his crimes were driven by addiction, he had a short adult criminal history, and he never received treatment. (McGinnis, supra, 87 Cal.App.4th at pp. 594-598.) Here, defendant is much older, has a lengthy criminal history, had been previously committed to CRC and, after his release, returned to custody on four occasions.
The trial court did not abuse it discretion in declining to commit defendant to CRC due to his excessive criminality, as shown by his prior convictions, prior poor performance on probation or parole, and the facts underlying the current offenses.
II
The People raise two issues with respect to the restitution fines. When the trial court initially granted probation in case No. 08F02715, it imposed a $400 restitution fine (§ 1202.4) and a $400 probation revocation restitution fine, which the court stayed pending completion of probation (§ 1202.44).
In the People’s view, the trial court imposed a duplicative section 1202.4 restitution fine in the amount of $400 in case No. 08F02715 when it sentenced defendant to prison. Not so. The trial court expressly said: “Defendant shall pay a [$400] restitution fine as previously ordered” pursuant to section 1202.4 and an additional $400 parole revocation restitution fine, suspended, pursuant to section 1202.45.
However, the People correctly point out that the trial court should have ordered defendant to pay the $400 probation revocation restitution fine (§ 1202.44), which had been stayed but became due and payable when probation was revoked. (People v. Guiffre (2008) 167 Cal.App.4th 430, 435.)
DISPOSITION
The judgment is modified by lifting the stay on the $400 section 1202.44 fine in case No. 08F02715. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that defendant must pay the $400 probation revocation fine, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: HULL, J., CANTIL-SAKAUYE, J.