Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071205
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant James Lewis pleaded no contest to two felonies, commercial burglary (Pen. Code, § 459) and auto burglary (§ 459), and admitted the special allegations that he had served three prior prison terms (§ 667.5, subd. (b)). He was sentenced to a total term of five years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the judgment should be reversed and the matter remanded for a new sentencing hearing because he received ineffective assistance of counsel, consisting of trial counsel incorrectly advising the trial court that defendant was ineligible for a civil commitment to the California Rehabilitation Center (CRC). (Welf. & Inst. Code, § 3051.) For the reasons stated below, we conclude that defendant has not shown that his trial counsel was ineffective, and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
The following facts are taken from the probation officer’s report filed on July 17, 2007. Police officers from the Marina Department of Public Safety were dispatched on March 18, 2007, after receiving a report that “a suspicious person in blue jeans and a black sweatshirt was taking tools from an auto repair shop” and hiding them under the stairs of a church. After arriving at the scene, a police officer determined that defendant matched the description of the suspicious person. Defendant had a padlock in his pants pocket and was wearing “workman’s gloves.” When questioned by the officer at the scene, defendant was lethargic and slow to respond.
Another officer spoke to the witness who had reported the suspicious activity. The witness had observed defendant carrying tools from a storage area and hiding them under the stairway of a church across the street. When confronted by the witness, defendant said that he had been fired from his job and was picking up his tools. The investigating police officers found a number of tools under the church stairway, including saws, drills, sanders, and extension cords, as well as two sawhorses with the name “ ‘Hofscheier’ ” written in black marker.
On further investigation, the police officers observed that the storage area across the street from the church was “suitable for a commercial business to conduct business operations.” They also observed physical damage to storage units and the commercial vehicles parked nearby. A business owner named Yates reported that four of his commercial trucks had been broken into and a number of tools were missing, and his employees had identified the tools hidden under the church stairway. Another business owner, named Hofsheier, reported that his van had been broken into and two sawhorses were missing. A tenant of the storage area told the officers that he had observed defendant loitering on the premises during the day.
Defendant was taken into custody and transported to the city jail. At that time, he appeared to be sleepy and “his eyes were droopy and bloodshot.” Defendant stated that he had taken 10 Valium tablets. He also claimed that he had permission to be in the storage area. However, when defendant was “confronted with the abundance of damaging details,” he admitted that he had used crack cocaine the previous evening, that he needed another “ ‘fix,’ ” and his motive was “to get more cocaine.” After being taken to the hospital, defendant told a police officer that he should not have taken the tools and apologized.
In a subsequent police interview, defendant said he had been working for a building contractor and accepting cocaine as part of his pay. Defendant also explained that he had been drinking beer and taking Valium and cocaine during the three days prior to his arrest. Consequently, he lost track of the days of the week and went to the storage area on a Sunday expecting to work. When defendant found the storage area empty, he decided to take the tools across the street to the church. Defendant stated that he “was absolutely out of his mind on alcohol and drugs” and he regretted what he had done.
B. Trial Court Proceedings
The information filed on April 23, 2007, charged five felony counts, including commercial burglary (§ 459; count 1); auto burglary (§ 459; counts 2-4), and petty theft with six prior convictions for theft-related offenses (§§ 666/484, subd. (a); count 5). The information also included the special allegations that defendant had served four prior prison terms (§ 667.5, subd. b).
On June 13, 2007, defendant pleaded no contest to count 1 (commercial burglary) and count 2 (auto burglary) and admitted the special allegations that he had served three prior prison terms, on the condition that he receive a sentence of no more than five years in state prison.
The sentencing hearing was held on July 20, 2007. The probation officer’s report, filed July 17, 2007, stated that defendant’s criminal record included ten prior felony convictions between 1976 and 2004, including convictions for grand theft (former § 487.1) in 1976, burglary (§ 459) in 1983, possession of a controlled substance (Health & Saf. Code, § 11350) in 1989, receiving stolen property (§ 496) in 1989, burglary (§ 459) in 1991, theft with a prior theft-related conviction (§§ 666/484) in 1996, receiving stolen property with a prison prior (§§ 496, subd. (a), 667.5, subd. (b)) in 1996, possession of a controlled substance (Health & Saf. Code, § 11350) in 2003, and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in 2004. Defendant’s criminal record also included four misdemeanor convictions for drug-related offenses (Health & Saf. Code, §§ 11550, 11364), two misdemeanor convictions for theft (§§ 484, 666), and multiple convictions for Vehicle Code violations.
The probation officer also reported that defendant’s performance on probation and parole had been unsatisfactory, with numerous violations of parole during his lengthy criminal history. Additionally, defendant’s arraignment for two other drug offenses was pending at the time of his arrest in the current case. Although defendant claimed that he was “ ‘ready’ to get clean and straighten out his life,” the probation officer determined, due to defendant’s “life-long alcohol/drug addictions” and his “repeated and consistent criminal conduct,” that “such an abrupt turn around is, at this time, unlikely.”
The probation officer was therefore “of the opinion that the defendant must serve a lengthy confinement before he makes the choice to enter a rehabilitation program.” The probation officer also stated, “The defendant is statutorily ineligible for a grant of Felony Probation and his failure in the Prop[osition] 36 program provides little assurance that he is prepared to comply with Probation supervision.” Accordingly, the probation officer recommended that defendant be committed to state prison. The probation report also included a copy of defendant’s letter to the trial court, in which defendant stated that he was a “recovering drug addict” and asked that he be allowed “to go into a residential program and learn how to live clean/sober once and for all.”
Initiative measure Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000, was codified as Penal Code section 1210, effective July 1, 2001. Proposition 36 “provides that persons convicted of certain nonviolent drug offenses shall be ordered to probation and receive drug treatment in lieu of incarceration.” (People v. Orabuena (2004) 116 Cal.App.4th 84, 88.)
During the sentencing hearing, defense counsel requested that execution of sentence be suspended and defendant placed in a long term residential treatment program for drug treatment. Alternatively, defense counsel requested a prison sentence of three years and “[i]f he is sent to prison we would recommend the SAP [substance abuse] program.” The following colloquy subsequently took place with respect to a possible CRC commitment under Welfare and Institutions Code section 3051:
“THE COURT: Do you realize this is your tenth felony conviction?
“THE DEFENDANT: Yeah, I know it . . . In my mind I’m subconsciously crying out to get help . . . .
“THE COURT: There’s other ways to get help other than stealing others[’] property. If you are interested in the [CRC] evaluation program, I can refer you to that. Otherwise, I will send [you to] prison for 5 years. You need to understand--that is a program that can work for you if you want it to work. For me to give somebody with your record felony probation, that’s just laughing in the face of what our justice system is about frankly. It’s not even close. Do you want treatment through the department of correction or do you want me to commit you to prison for 5 years?
The trial court referred to the “CRS program,” but the parties agree that the court meant the CRC program under Welfare and Institutions Code section 3051.
“[DEFENSE COUNSEL]: I don’t think he will be eligible for [CRC] because of the extensive criminal history. That’s why I recommended the SAP [prison substance abuse program].
“THE COURT: I agree. Felony probation though in your case is not something I even have to think or dwell on, Mr. Lewis. . . .”
The trial court then sentenced defendant to a total term of five years in state prison on counts 1 and 2, and on the court’s own motion dismissed the third special allegation of a prior prison term (§ 667.5, subd. (b)) in the interests of justice under section 1385.
Defendant filed a notice of appeal on August 15, 2007, and an amended notice of appeal on September 10, 2007. The amended notice of appeal states that an appeal from a judgment on a no contest plea on the ground that the trial court committed sentencing error is authorized by California Rules of Court, rule 8.304(b)(4)(B).
California Rules of Court, rule 8.304(b) provides, “(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere . . ., the defendant must file in that superior court with the notice of appeal required by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶] . . . [¶] (b)(4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] . . . [¶] (B) Grounds that arose after entry of the plea and do not affect the plea’s validity.”
III. DISCUSSION
On appeal, defendant contends that his trial counsel was ineffective in incorrectly advising the trial court that defendant was ineligible for a CRC commitment under Welfare and Institutions Code section 3051 when the court was “poised, on [defendant’s] spoken approval, to order the prosecutor to petition for a CRC commitment.” The People disagree, arguing that defendant cannot show that the claimed ineffective assistance of counsel was prejudicial because defendant’s excessive criminality would have caused the Director of Corrections to find that defendant was not a fit subject for CRC commitment. We will begin our analysis with a discussion of the appropriate standard of review.
A. The Standard of Review
To prevail on an ineffective assistance of counsel claim, the defendant must show that (1) “counsel’s performance fell below a standard of reasonable competence” and (2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Thus, “[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson, supra, 25 Cal.4th at p. 569.)
In determining whether counsel’s performance was deficient, a “court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decision making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389.) The California Supreme Court has stated, however, that “[u]nder existing law, a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his [or her] client may be found incompetent.” (People v. Scott (1994) 9 Cal.4th 331, 351.)
Having determined the appropriate standard of review, we next consider the rules governing a CRC commitment.
B. CRC Commitment
Pursuant to Welfare and Institutions Code section 3051, the trial court may suspend execution of the sentence and commit a person convicted of a felony to the CRC “upon finding that the person is addicted, or in imminent danger of being addicted, to narcotics, and that the person’s pattern of criminality does not make him or her an unfit subject for diversion . . . .” (People v. Superior Court (Ghillotti) (2002) 27 Cal.4th 888, 911.) However, “certain categories of offenses and offenders” (which the parties agree are not relevant in the present case) are statutorily ineligible for CRC commitment pursuant to Welfare and Institutions Code section 3052. (People v. Cruz (1990) 217 Cal.App.3d 413, 419.)
Welfare and Institutions Code section 3051 provides in 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.”
Welfare and Institutions Code section 3052 provides, “(a) Sections 3050 and 3051 shall not apply to any of the following: [¶] (1) Persons convicted of any offense for which the provisions of Section 667.6 of the Penal Code apply, or any offense described in Chapter 1 (commencing with Section 450) of Title 13 of Part 1 of the Penal Code; or any person convicted of committing or attempting to commit any violent felony as defined in subdivision (c) of Section 667.5 of the Penal Code. [¶] (2) Persons whose sentence is enhanced pursuant to subdivision (b) of Section 12022 of the Penal Code, or Section 12022.3, 12022.5, 12022.53, 12022.6, 12022.7, or 12022.8 of the Penal Code; or persons whose sentence is subject to the provisions of Section 3046 of the Penal Code; or persons whose conviction results in a sentence which, in the aggregate, exclusive of any credit that may be earned pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code, exceeds six years’ imprisonment in state prison; or persons found to come under the provisions of Section 1203.06 of the Penal Code. [¶] (b) Notwithstanding the provisions of subdivision (a) of this section or Section 3053, the fact that a person comes within Section 1203.07 of the Penal Code does not mean that he or she may not be committed and treated.”
To determine whether a “ ‘pattern of criminality’ ” makes the person unfit for CRC commitment, the trial court may consider a defendant’s prior convictions, performance on probation or parole, and the circumstances of the current offense. (People v. Jeffery (2006) 142 Cal.App.4th 192, 196; People v. Cruz, supra, 217 Cal.App.3d at p. 420.) “Thus, under the statutory scheme, the court has initial responsibility to screen out those addict defendants who because of their pattern of criminality most obviously are unlikely to benefit from the rehabilitative program, and might disrupt or impede the treatment of others.” (People v. Cruz, supra, 217 Cal.App.3dat p. 419.)
Once a person is committed to the CRC for treatment, the Director of Corrections may determine that “ ‘because of excessive criminality or for other relevant reason,’ the person ‘is not a fit subject’ for detention and treatment at CRC [and] return the person to the superior court for the resumption of criminal proceedings. ([Welf. & Inst. Code,] § 3053, subd. (a).)” (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 911.)
Keeping the statutory framework for a CRC commitment in mind, we turn to defendant’s claim of ineffective assistance of counsel.
C. Ineffective Assistance of Counsel
Defendant contends that trial counsel’s performance was deficient because counsel acted against defendant’s interest. According to defendant, trial counsel prevented the trial court from instituting proceedings for a CRC commitment, although the court had offered to do so, by incorrectly advising the court that defendant was ineligible due to his extensive criminal history. Defendant further asserts that there could be no tactical reason for trial counsel’s action because a “CRC commitment would have avoided a five year prison sentence, and would have provided defendant with the residential treatment program he sought, and it was well within the court’s exercise of discretion to order such a commitment.”
Trial counsel’s deficient performance was prejudicial, defendant argues, because the trial court was willing to impose a CRC commitment if defendant was agreeable and, absent trial counsel’s improper concession that defendant was ineligible, there was a “significant likelihood” that the court would have ordered a CRC commitment. His criminal history would not have precluded a CRC commitment, defendant explains, because he had no history of juvenile crime, no convictions for crimes involving violence or threats of violence, and no convictions for serious or violent felonies, and the record shows that defendant’s “main problem is drug abuse.”
The People respond that the record reflects that trial counsel’s performance was not deficient because counsel made a tactical decision to recommend the prison substance abuse program (“SAP”) instead of a CRC commitment, knowing that defendant’s criminal history rendered him unfit for CRC commitment. They point out that defendant’s criminal history includes numerous felony and misdemeanor convictions, as well as a “20-year drug problem” and failure at rehabilitation while on probation, including failure of a Proposition 36 drug treatment program.
The People also assert that defendant cannot show prejudice, because defendant’s “excessive criminality would surely have caused the Director of Corrections to find he was not a fit subject for CRC . . . .” Additionally, the People argue that a CRC commitment could have resulted in defendant serving more time in confinement than he otherwise would have.
We find the decision in People v. Lizarraga (2003) 110 Cal.App.4th 689 (Lizarraga) to be instructive. In Lizarraga, the defendant argued that his trial counsel was ineffective for failing to raise the issue of a CRC commitment in the trial court. The appellate court disagreed, reasoning that “[t]here may be many legitimate reasons for counsel’s failure to request a CRC commitment. . . . [D]efendant’s counsel could have believed ‘defendant’s record and probation report indicate[d] such a pattern of criminality that [defendant did] not constitute a fit subject for commitment . . . .’ [Citation.] Alternatively, defendant might have indicated that he did not want a CRC commitment for reasons relating to the programs offered by CRC, the different conditions of confinement, or other factors having to do with the period of confinement. Indeed, ‘[i]t is settled that a defendant is not entitled to worktime or conduct credits for time served at CRC.’ [Citations.] Thus, defendant may prefer serving a short term prison sentence, which could be substantially reduced by worktime credit under [section] 2933. If defendant were instead committed to CRC and later excluded, he might end up serving more time in confinement that he otherwise would have. [¶] Because there are numerous plausible reasons why counsel did not request a CRC commitment, no ineffectiveness of counsel appears in this record.” (Id. at p. 693.)
We believe that the present case is similar to Lizarraga because defendant has failed to show that trial counsel had no reasonable tactical basis for declining the trial court’s offer to institute proceedings for a CRC commitment and there are “numerous plausible reasons” for counsel’s action. The record reflects that trial counsel was aware of the possibility of a CRC commitment, but instead advocated for either suspension of sentence and placement in a long-term residential drug treatment program or placement in the prison substance abuse program. Trial counsel stated her reasonable belief that defendant was ineligible for a CRC commitment due to his extensive criminal history.
Trial counsel’s decision may also have been based in part on “considerations that do not appear in the record, including confidential communications from the client.” (People v. Lucas (1995) 12 Cal.4th 415, 443.) For example, defendant may not have wanted a CRC commitment due to the unavailability of worktime or conduct credits for time served, the conditions of confinement, or the programs offered by the CRC. There may also have been a concern that if defendant were committed to CRC and then excluded by the Director of Communications due to his extensive criminal history, he might serve more time than he would have under the five-year prison sentence imposed by the trial court.
Following the guidance of the California Supreme Court, “we presume counsel’s decision . . . was a reasonable, tactical one unless the record affirmatively demonstrates otherwise.” (People v. Lucas, supra, 12 Cal.4th at p. 443) Since the record in the present case does not affirmatively demonstrate that trial counsel failed to “pursue the most advantageous disposition” for defendant (People v. Scott, supra, 9 Cal.4th at p. 351), we must presume that counsel’s decision to advise the trial court that defendant was ineligible for a CRC commitment was a reasonable, tactical one. Defendant has therefore failed to meet his initial burden on appeal to show that counsel’s performance fell below a standard of reasonable competence (People v. Anderson, supra, 25 Cal.4th at p. 569), and we need not reach the issue of prejudice.
For these reasons, we conclude that defendant’s ineffective assistance of counsel claim lacks merit and we will affirm the judgment.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.