Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202610, Larrie R. Brainard, Judge.
O'ROURKE, J.
A jury convicted defendant James Loften of selling or furnishing a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and Loften admitted allegations that he had two prior convictions for selling a controlled substance (Health & Saf. Code, 11370.2, subd. (a); Pen. Code, § 1203.073, subd. (b)(7)) and had served a prior prison term (Pen. Code, §§ 667.5, subd. (b), 668). The trial court sentenced Loften to a seven-year state prison term. On appeal, Loften seeks a new sentencing hearing on grounds the trial court did not perform its responsibilities in determining his fitness for admission to the California Rehabilitation Center (CRC) under Welfare and Institutions Code section 3051. He contends that even if we conclude the court implicitly rejected his request for a CRC referral, we should nevertheless hold it abused its discretion by failing to order him to undergo a CRC evaluation. Finally, he contends the trial court erred by omitting express findings and reasons for its ruling.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We agree that, on this record, we cannot conclude the trial court exercised its informed sentencing discretion regarding possible CRC commitment for Loften. We therefore remand this matter for resentencing only, with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. In November 2006, Loften sold a bindle of a substance containing .17 grams of cocaine base to an undercover police officer through a person named "Red," who obtained the drugs from Loften and gave them to the officer. Loften had previously been convicted of selling controlled substances in 1999 and 2001. Following the verdict, Loften moved to strike his prior convictions for drug sales, claiming he sold cocaine base in order to support his drug habit.
At the sentencing hearing, defense counsel reiterated these arguments, pointing out Loften's prior record consisted of minor misdemeanors and arguing Loften was a drug user and did not make a living or profit from selling drugs. Counsel asked the court to reduce or strike his sentence back to six years and consider a referral to CRC, emphasizing Loften was an addict and "CRC was made for addicts." Loften also addressed the trial court, claiming he had been trying to get drug treatment, had letters showing he had attended Narcotics Anonymous and Alcoholics Anonymous on his own initiative while in jail, and took parenting classes for his son, who had been born after his incarceration. Loften asserted he was trying to change his life and get some help; that he did not profit from his sales but was an addict.
Pointing to Loften's two previous drug sales convictions, the prosecutor asserted Loften was a drug dealer whose conduct warranted imprisonment. He stated Loften could seek rehabilitation after serving his time. After those comments, the court sought input from the probation officer, asking if "CRC was looked into at all." The probation officer indicated he or she was not the author of the probation memo, stating, ". . . so I am not aware, but they usually indicate, so I probably say no . . . [¶] . . . [¶] They usually would put it under collateral. And we usually don't have [it] if the term is over six years anyway, so."
Loften's probation report does not refer to or make recommendations on any CRC referral. It reports that Loften has used alcohol, marijuana and methamphetamine; that at about age 15 or 16 he stopped using drugs but started using methamphetamine again when his grandmother died. It shows that in October 1993, Loften pleaded guilty to charges of battery and intimidation and was granted probation, but his probation was revoked (and later reinstated) in March 1994, December 1995 and June 1997. In July 1999, he pleaded guilty to selling a controlled substance and received probation, which was terminated in April 2001, when he pleaded guilty to another charge of selling controlled substances. Loften received a three-year state prison term for the latter offense. In July 2004, he pleaded guilty to a charge of domestic violence and was sentenced to 180 days in jail. In October 2006, Loften was again put on probation for pleading nolo contendere to a charge of fighting or challenging another to fight in public. His probation was revoked upon his commission of the present offenses. The probation officer noted Loften had been homeless and primarily unemployed since at least 2000, and had minimal contact with probation, mailing in some monthly reports and registering as a narcotics offender, but that he never participated in a treatment program. However, it also indicates Loften has written to several treatment programs including the Salvation Army, Freedom Ranch, Casa Rafael, Delancy Street and the House of Metamorphosis. Noting Loften was ineligible for probation, the probation officer recommended a 12-year prison term. The probation officer wrote in part: "This defendant has two prior felony convictions for selling cocaine base. He has no consistent record of employment and has been primarily homeless for years. He also needs a long term drug program. However, the defendant is absolutely ineligible for probation so a prison sanction is recommended.
The trial court denied Loften probation and sentenced him to state prison. Noting Loften had been arrested in similar "buy-bust" operations for selling cocaine base in 1999 and 2001, the court remarked: "I would think at some point, Mr. Loften, you would learn something. They're out there looking to get you for selling drugs and you keep doing it. You should learn. The average guy, average woman learns over the years. They figure some things out. You better start figuring some things out. These are $20 sales, $4 profit situations. I'm not naïve enough to think that the only time Mr. Loften sold was to the man. I mean, he was obviously involved in this lifestyle. I noticed that the first case, in our last case, there was somebody named Red who was involved. Got away. Guess it's the same Red years apart. [¶] Whatever, Mr. Loften, you need to make some changes. And whether you get help for your drug problem, is up to you to be – don't say to the judge: Judge, you got to help me with my drug problem. Don't say to [defense counsel] or your mother you got to help me with my drug problem. The only one that's got to help you is you. Until you decide to do something about it. It does not matter what I want. I would love for you to be drug-free and in a drug program. Trust me, your child would, too. You should think what you do to your child when you go out and do these things. That should be your first thought."
The court struck one of Loften's three-year prior conviction enhancements and the prison term enhancement. It sentenced Loften to the midterm of four years plus three years for the second prior conviction enhancement, for a total seven-year sentence. At the conclusion of its pronouncement, the court said, "I am required to, and I will recommend drug treatment and even CRC if [Loften] can apply for [it] while he's in prison. If they would take him with that sentence." Loften filed this appeal.
DISCUSSION
I. CRC Commitment Process/Standard of Appellate Review
Section 3051 provides for suspending execution of sentence and committing to CRC a defendant who is addicted to or in imminent danger of becoming addicted to narcotics. (§ 3051; People v. Chavez (2004) 116 Cal.App.4th 1, 3.) It "vests discretion in the trial court to determine whether evaluation for commitment to CRC is appropriate." (People v. Masters (2002) 96 Cal.App.4th 700, 703-704.) In part, section 3051 states: "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 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."
Under section 3053, following an order for commitment, the Director of Corrections has the discretion to "exclude any person who 'because of excessive criminality or . . . other relevant reason,' is found 'not a fit subject for confinement or treatment' at CRC." (People v. Cruz (1990) 217 Cal.App.3d 413, 419, quoting § 3053, subd. (a); People v. McGinnis (2001) 87 Cal.App.4th 592, 596 & fn. 3 [observing that section 3051 and 3053 use different terminology to describe conditions for exclusion, and that the exclusion is intended to be based upon an extensive history of criminal activity, not based upon the severity of crimes committed].)
Under this provision, sentencing courts are required to order a CRC referral for a defendant found to be a narcotics addict or in danger of becoming one unless the court finds the defendant has engaged in "a pattern of criminality" that makes him or her unfit for commitment. (See People v. Masters, supra, 96 Cal.App.4th at pp. 703-704; People v. McGinnis, supra, 87 Cal.App.4th at pp. 595-596 [noting that where a lower court finding of "excessive criminality" is the functional equivalent of a statutory finding of "pattern of criminality," appellate courts have used the two phrases interchangeably]; People v. Granado (1994) 22 Cal.App.4th 194, 200 [court referred to exclusion factor as "excessive criminality"].) " '[T]he only factor properly considered by the trial court in determining whether to institute criminal proceedings is excessive criminality; all other considerations should be left to the experts at CRC . . . . ' " (People v. Cruz, supra, 217 Cal.App.3d at p. 420, italics added; see also People v. Granado, supra, 22 Cal.App.4th at p. 200.) This determination "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.' " (People v. Cruz, at p. 421.)
Not all defendants who may be addicted to narcotics or may be in imminent danger of becoming addicted have access to CRC, however. Section 3051 "shall not apply" to persons "whose conviction results in a sentence which, in the aggregate, exclusive of any credit that may be earned . . . exceeds six years' imprisonment in state prison . . . ." (§ 3052, subd. (a)(2); see People v. Cruz, supra,217 Cal.App.3d at p. 419; People v. Krauss (1984) 158 Cal.App.3d 274, 277-278.) Defendants who fall within this category are statutorily ineligible for CRC. (Krauss, at p. 279.)
II. Contentions
Loften advances several arguments as to why his case must be remanded for a new sentencing hearing. First, he contends the trial court did not rule on his request for CRC commitment; that the court misunderstood the CRC commitment process and its responsibility to determine his fitness for rehabilitative treatment or initiate Welfare and Institutions Code section CRC commitment proceedings. He maintains not only did the trial court fail to make an informed sentencing decision, but that it would have found him to be a suitable candidate for CRC had it understood the commitment process based on the lack of an extensive or serious criminal history and evidence of his addiction to drugs. Loften further contends that even if we can imply findings that the trial court rejected his request for a CRC referral, the trial court's order is an abuse of discretion based on the evidence of his history of drug addiction, desire for treatment and his limited criminal record. For these same reasons, Loften contends the trial court abused its discretion in sentencing him to seven years in state prison, a sentence that renders him ineligible for a CRC commitment.
The People respond that the trial court did not abuse its discretion in declining to refer Loften to CRC because its comments showed recognition that his criminal record made him ineligible for CRC and the court had no discretion to issue a CRC referral in any event because Loften's seven-year sentence rendered him ineligible under section 3052, subd. (a)(2). The People emphasize that, in view of the probation officer's recommended 12-year sentence, the trial court acted well within its discretion to impose a seven-year prison term for Loften; that Loften cannot justify overturning his sentence because he wanted the court to exercise its discretion in a different manner. The People further assert that the trial court's comments provide the required statement of reasons when it noted his prior narcotics sales convictions in 1999 and 2001. Finally, the People argue any errors made by the trial court in stating reasons on Loften's request for a CRC referral are harmless given Loften's seven-year sentence, which rendered him statutorily ineligible for CRC commitment.
III. Loften is Entitled to The Trial Court's Informed Sentencing Discretion, Including its Determination of Eligibility for CRC Commitment
Viewed in isolation, imposition of Loften's seven-year sentence consisting of the four-year midterm plus three years for the prior conviction enhancement was within the trial court's discretion. However, we decline to view the propriety of Loften's prison term without also considering the trial court's comments as to CRC commitment. Putting the trial court's sentencing decision in context, we conclude remand for resentencing is appropriate.
While this record reflects the trial court's apparent attempt to correctly exercise its discretion regarding its ability to recommend a CRC referral, we cannot harmonize the court's comments as to Loften's criminality and prior record on the one hand, with its final remark that it would recommend drug treatment and "even CRC" if Loften could "apply for it" or "[i]f they would take him" with his seven-year sentence. The latter remarks indicate the court was not cognizant of the fact that a seven-year prison term rendered Loften statutorily ineligible for a CRC commitment or that, in view of Loften's sentence, it had no discretion to order initiation of CRC commitment proceedings under section 3052. Loften's probation report does not address CRC commitment, and the probation officer at the hearing did not advise the court that the seven-year sentence rendered Loften ineligible; the probation officer only remarked that the probation report would "usually" not address CRC commitment if the sentence exceeded six years. In view of the record, and our inability to reconcile the trial court's comments with the sentence it had just imposed, we are unable to imply findings that the trial court recognized the impact of Loften's seven-year sentence and understood its discretion with regard to its ability to recommend a CRC commitment.
It also appears from the record that the court mistakenly believed Loften might somehow initiate CRC proceedings on his own, i.e., that he had an opportunity to "apply" for CRC. We cannot say, based upon its comments, that had the trial court known a seven-year prison term would render Loften ineligible for CRC, it would have nevertheless exercised its discretion in the same manner and imposed a seven-year prison term. "An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. [Citation.] 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.]' [Citation.] A court cannot exercise that 'informed discretion' where it is unaware of the scope of its discretionary powers." (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248, quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Downey (2000) 82 Cal.App.4th 899, 912; see also People v. Jolke (1966) 242 Cal.App.2d 132, 143 ["Where the trial court has erroneously refused to exercise the discretion conferred by [Penal Code] section 6451 [now Welfare and Institutions Code, § 3051] because of a misapprehension as to the defendant's eligibility for the program, the case will be remanded to permit the exercise of such discretion"].) Regardless of its ultimate choice of sentences, the trial court must make the record clear that it understands the scope of its discretion and that it is making a knowing choice as to how to exercise that discretion.
Faced with the court's inconsistent statements in the sentencing discourse, we conclude the court did not knowingly exercise its sentencing discretion or operate with the understanding that it lacked discretion to make a CRC referral order. We therefore remand the matter for resentencing in light of the above-referenced principles and the provisions of sections 3051 and 3052. If, having these principles in mind, the trial court exercises its sentencing discretion and imposes the same seven-year prison term, the judgment stands and the trial court is directed to deny Loften's request for CRC commitment. If the trial court exercises its discretion to sentence Loften to a prison term of six years or less, it shall then engage in the two-step process of deciding whether Loften is an addict or in imminent danger of becoming an addict, and if so, either order initiation of commitment proceedings or determine that Loften's "record and probation report indicate such a pattern of criminality that he . . . does not constitute a fit subject for commitment" under section 3051. The trial court shall enter its written reasons in the minute order to support its determination. (Cal. Rules of Court, rule 4.406(b)(9); People v. Jeffrey (2006) 142 Cal.App.4th 192, 196; People v. Masters, supra, 96 Cal.App.4th at p. 706.) We do not express any opinion as to the sentence that should be imposed on remand. We only require the trial court to knowingly exercise its discretion.
DISPOSITION
The matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.
WE CONCUR: NARES, Acting P. J., IRION, J.