Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR027063. Jennifer R.S. Detjen, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HARRIS, P.J.
STATEMENT OF THE CASE
On November 20, 2006, the Madera County District Attorney filed criminal complaint No. MCR027063 in the superior court charging appellant Javier Ignacio Maciel as follows: count I—fraudulent transfer of an access card (Pen. Code, § 484e, subd. (a)); count II—unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and count III—receiving stolen property (Pen. Code, § 496, subd. (a)).
On November 27, 2006, appellant was arraigned and pleaded not guilty to the charges.
On December 8, 2006, appellant filed a written declaration regarding guilty plea pursuant to a plea agreement with the prosecution. Thereupon in open court appellant pleaded guilty to count I in case No. MCR027063, admitted a violation of probation in unrelated case No. MCR023428, agreed to a three-year maximum term of imprisonment in case No. MCR027063, and further agreed that the terms would run concurrent. In exchange, the prosecution agreed to dismissal of the remaining counts of case No. MCR027063 with Harvey waivers and to dismissal of unrelated case No. MCR026790. The court set “January 8th, 8:30” for sentencing and referred the cases to the Probation Department for report and recommendation.
People v. Harvey (1979) 25 Cal.3d 754.
After several continuances, on January 29, 2007, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to the upper term of three years in state prison on count I in case No. MCR027063. The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (1202.45), and imposed a $330 presentence report fee. The court also imposed $670 in fines and penalties (§ 672) and $32.50 in assessments (§ 1202.5). In case No. MCR023428, the court imposed the middle term of two years on count I (§ 496, subd. (a)) and directed that term to run concurrent to that imposed in case No. MCR027063.
On January 30, 2007, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea.
On April 24, 2007, appellate counsel filed an application to confirm or determine the jurisdiction of this court, noting the matter (case No. MCR027063) had never been certified to the superior court pursuant to Penal Code section 859a.
On May 2, 2007, this court filed an order deferring a ruling on appellant’s application until consideration of the appeal on its merits.
STATEMENT OF FACTS
The following facts are taken from the report and recommendation of the probation officer filed December 20, 2006:
“On October 26, 2006, Valerie Kemp reported to Madera Police officers that a man and woman came to her door at 2:00 a.m. She stated they asked for a ride and she agreed to help them. She stated she drove the couple to a gas station and then drove them to a house at ... Martin Street, in Madera. She stated that they got out of the car and walked toward the house. She said that they were supposed to return with money to compensate her for giving them a ride. She stated that she waited several minutes, but they did not return. She stated that she then went home. She reported that when she woke up that morning she discovered that her purse, including identification and Social Security cards for herself and her children and Welfare Benefits card were missing. Ms. Kemp did not provide the names of the subjects, but reported she could identify them.
“On March 15, 2006, at approximately 1:00 a.m., probation officers conducted a search of a bedroom used by the defendant and his girlfriend, Jamie Castillo. The probation officers found a coin purse with Social Security cards and Welfare Benefits identification cards, issued in the name of Valerie Kemp. They also found a California Identification Card issued to Robert Railton. A probation officer reported she made attempts to contact Ms. Kemp and Mr. Railton with negative results. The defendant was not present at the time of the probation search. On October 31, 2006, the defendant was arrested at his residence for probation violations. When taken into custody the defendant was in possession of a methamphetamine pipe with residue. When the defendant was informed that another search of his room on October 19, 2006, resulted in the finding of .4 grams of methamphetamine, the defendant stated, ‘Oh, that’s mine.’ At the time of his arrest the defendant stated that he had just used methamphetamine. The defendant stated to his probation officer that he was not addicted. He stated, ‘I can stop using any time, I just don’t want to.’
“On November 6, 2006, the probation officer was able to contact Valerie Kemp. She stated that the Social Security cards were issued to her children and herself. She reported the Welfare Benefits cards had been used at a Wal Mart for purchases in the amount of $300 and at a convenience store for purchases in the amount of $100. She stated that the losses had been reported to her caseworker and the Madera Police Department. The probation officer also made contact with Robert Railton. He explained that he lives with Ms. Kemp and his California Identification Card was stolen from her purse with the other cards and identification.”
DISCUSSION
I.
APPELLATE JURISDICTION
Introduction
On April 24, 2007, appellant filed an application to confirm or determine this court’s appellate jurisdiction, noting the absence from the clerk’s transcript of any Penal Code section 859a proceeding certifying appellant’s case to the superior court. On May 2, 2007, this court deferred ruling on appellant’s application pending consideration of the appeal on its merits. This court also directed the parties to address the following issue in their opening briefs:
“Does this court have jurisdiction to consider the appeal from the appellant’s felony conviction since the magistrate did not expressly appoint a time for pronouncing judgment in the superior court? (See Pen. Code, § 859a, Cal.Law Revision Com. Com., 51 West Ann. Penal Code (1998 ed.) foll. § 1235, p. 4 and People v. Nickerson (2005) 128 Cal.App.4th 33.”
Position of the Parties
Appellant and respondent in their respective briefs on appeal agree that this court should have jurisdiction to hear his appeal because appellant was convicted of a felony and sentenced to state prison. Assuming arguendo this court disagrees, the parties maintain the case should be transferred to the appellate department of the superior court for further proceedings.
Discussion
Penal Code section 859a states in relevant part:
All further statutory references are to the Penal Code unless otherwise indicated.
“(a) If the public offense charged is a felony not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him or her whether he or she pleads guilty or not guilty to the offense charged therein and to a previous conviction or convictions of crime if charged. While the charge remains pending before the magistrate and when the defendant’s counsel is present, the defendant may plead guilty to the offense charged, or, with the consent of the magistrate and the district attorney or other counsel for the people, plead nolo contendere to the offense charged or plead guilty or nolo contendere to any other offense the commission of which is necessarily included in that with which he or she is charged, or to an attempt to commit the offense charged and to the previous conviction or convictions of crime if charged upon a plea of guilty or nolo contendere. ... Upon accepting the plea of guilty or nolo contendere the magistrate shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced at the time specified under subdivision (b), and thereupon the proceedings shall be had as if the defendant had pleaded guilty in that court....
“(b) Notwithstanding Section 1191 or 1203, the magistrate shall, upon the receipt of a plea of guilty or nolo contendere and upon the performance of the other duties of the magistrate under this section, immediately appoint a time for pronouncing judgment in the superior court and refer the case to the probation officer if eligible for probation, as prescribed in Section 1191.” (Italics added.)
While in the present case the magistrate set a time for sentencing, and referred the matter to the probation officer, the record does not reveal that an express certification “to the court in which judgment is to be pronounced” occurred.
Section 691, subdivisions (f) and (g) provide, respectively, the following definitions to felony and misdemeanor cases:
“(f) ‘Felony case’ means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony.
“(g) ‘Misdemeanor or infraction case’ means a criminal action in which a misdemeanor or infraction is charged and does not include a criminal action in which a felony is charged in conjunction with a misdemeanor or infraction.” (Italics added.)
Section 949 provides in relevant part that:
“The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a . The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.” (Italics added.)
Section 1235, subdivision (b) states:
“An appeal from the judgment or appealable order in a felony case is to the court of appeal for the district in which the court from which the appeal is taken is located.” (Italics added.)
The Law Revision Commission comment to section 1235, subdivision (b) states in relevant part:
“Subdivision (b) continues former Section 1466(b). Appeals in felony cases lie to the court of appeal, regardless of whether the appeal is from the superior court, the municipal court, or the action of a magistrate....” (Cal. Law Revision Com. com, 51 West. Ann. Pen. Code (2004 ed.) foll. § 1235, p. 4.)
Government Code section 68915 provides:
“No appeal taken to the Supreme Court or to a court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein, as if regularly appealed thereto.”
A felony complaint, unlike a misdemeanor complaint, does not confer trial jurisdiction. Rather, it invokes only the authority of a magistrate and not that of a trial court. (§ 806.) The felony complaint functions to bring the defendant before a magistrate for an examination as to whether probable cause exists to formally charge him or her with a felony. Only if probable cause exists may an information invoking the trial jurisdiction of the superior court be filed. A misdemeanor complaint, by contrast, is not a preliminary accusation. Instead, it is a formal charge and constitutes an accusatory pleading giving the court jurisdiction to proceed to trial. (Serna v. Superior Court (1985) 40 Cal.3d 239, 257 [case decided before 1998 unification of the municipal and superior courts under a constitutional amendment authorizing unification]; see People v. Nickerson (2005) 128 Cal.App.4th 33, 37 (Nickerson).)
In Nickerson, supra, 128 Cal.App.4th 33, the original complaint in the case included a felony and two misdemeanors. After a preliminary examination, the trial court, acting as magistrate, held the defendant to answer only on the two misdemeanors. After the jury convicted defendant of one of those misdemeanors, the defendant filed a notice of appeal in the superior court. The clerk of the Shasta County Superior Court directed the appeal to the Court of Appeal, Third Appellate District. The Third District concluded the case had to be transferred to the appellate division of the superior court, stating:
“Based on the analysis in Serna, a defendant is not ‘charged with a felony’ within the meaning of section 691 until an information or indictment is filed or a complaint is certified to the superior court pursuant to section 859a. (See § 949.) When the matter goes before the magistrate for a preliminary examination and the court as magistrate reduces all of the felony charges from felonies to misdemeanors under section 17, subdivision (b)(5), the defendant is never charged with a felony. The resulting case is thus a misdemeanor case and appellate jurisdiction belongs in the appellate division of the superior court.
“That is precisely what happened here. In the complaint, the People alleged defendant committed felony child endangerment (a wobbler alleged as a felony) (§ 273a, subd. (a)), misdemeanor reckless and negligent boating, and misdemeanor hit and run with a boat. At the conclusion of the preliminary examination, the judge, as magistrate, reduced the felony charge to a misdemeanor, dismissed one of the misdemeanors, and the case proceeded to trial on two misdemeanor charges. The appeal from the resulting conviction in the misdemeanor case should have been directed by the clerk to the Appellate Division of the Shasta County Superior Court.” (Nickerson, supra, 128 Cal.App.4th at pp. 38-39.)
Appellant aptly notes that a literal application of Nickerson and Serna would lead to logical inconsistencies in the instant case:
“Taken to extremes, Nickerson and Serna would dictate that the appellant in the instant case be deemed to have pleaded while his case was still a misdemeanor, since no indictment or information or certification to superior court was ever perfected. Yet Penal Code secs. 19 and 19.2 provide that the maximum penalty for a misdemeanor is one year, and the appellant in this case was sentenced to three years in state prison. Thus it is incongruous to say that appellant pleaded to a charge that was technically a misdemeanor (if Nickerson/Serna are applied), yet received a sentence that could only be imposed for a felony. Nickerson should be limited to its facts, that is, to cases where the defendant is sentenced only on a misdemeanor and tries to appeal that misdemeanor conviction to the California Court of Appeal.”
Respondent concurs with these observations and we are in agreement with both parties, for several reasons. First, the precise factual scenario of Nickerson is simply not present in the instant case. Appellant received a sentence that could only be imposed for a felony offense. Second, neither a departure from the form or mode prescribed by the Penal Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right. (§ 1404; see In re Payton (1946) 28 Cal.2d 194, 197, disapproved on another point in In re Fluery (1967) 67 Cal.2d 600, 603.) Appellant alludes to no such prejudice from the lack of certification (§ 859a) in the instant case. Third, the courts of California possess inherent powers to insure the orderly administration of justice. Specifically, courts have inherent authority to control their own calendars and dockets. (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267.) Appellant’s notice of appeal was filed on January 30, 2007, and a transfer of his case to the appellate department of the superior court at this late date would create undue delay in the resolution of his appellate contentions.
We therefore, based on the above analysis, and the mutual positions of the parties and in the furtherance of judicial economy and the orderly administration of justice, and an exercise of common sense, confirm our appellate jurisdiction and will resolve appellant’s contentions.
II.
UPPER TERM OF IMPRISONMENT
Appellant contends the sentence imposed violates the federal Constitution because the trial court relied upon factors not found true beyond a reasonable doubt by a jury.
In sentencing appellant on January 29, 2007, the trial court stated:
“Defendant’s prior performance on probation has been unsatisfactory. I’m going to treat you just as I would treat anyone else with your record, Mr. Maciel, and with these facts.
“In Case 23428 probation is revoked and will not be reinstated for a third time.
“In Case 27063 probation is denied.
“In aggravation, there are two prior misdemeanor convictions, one prior felony conviction. … [T]hat is in Case 27063. There are no factors in mitigation.
“The middle term is given unless the factors in aggravation exceed the factors in mitigation. That is the law. And they clearly do exceed the factors in mitigation.”
Appellant initially argues:
“The court noted the defendant’s Harvey waiver allowing the court to consider the dismissed counts, and found that the defendant’s performance on probation and parole was egregious because the defendant was committing crimes and was not a United States citizen. The court noted that the defendant had violated his probation twice in one year. The court noted two prior misdemeanor conviction[s] and one prior felony, and found that factors in aggravation clearly exceeded those in mitigation. The court imposed the aggravated term of three years for the Penal Code section 484e, subdivision (a) offense.
“As noted by defense counsel, these priors were neither alleged in any pleading nor admitted by the defendant. The Harvey waiver given extended to the balance of the dismissed counts in this case, but did not extend to consideration of priors. [¶] ... [¶]
“Furthermore, although a single factor in aggravation is sufficient to support imposition of the upper term (see, e.g., People v. Osband (1996) 13 Cal.4th 622, 728; People v. Cruz (1995) 38 Cal.App.4th 427, 433), it cannot be ascertained from the record in this case which aggravating factor or combination of factors the trial court found determinative. It simply did not give any indication of the weight it accorded each aggravating factor. And Neder [v. United States (1999) 527 U.S. 1] does not permit a reviewing court to guess at how a jury would have resolved a dispute.... Consequently, it cannot be determined what sentence the trial court would have imposed on the principal count had it understood that the majority of the aggravating factors upon which it relied were constitutionally impermissible. As such, the erroneous use of the aggravating factors in this case was prejudicial, and it cannot be said that the error was harmless beyond a reasonable doubt.”
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this state’s Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the court held California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] ... [¶]
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury....
“... Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ [¶] ... [¶]
“... The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. ___ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
Courts have held that no jury trial right exists on matters involving the issue of recidivism. (People v. Thomas (2001) 91 Cal.App.4th 212, 221.) Here, the trial court’s conclusion as to denial of probation and imposition of the upper term was predicated upon appellant’s recidivism, particularly one prior felony conviction, and this did not entail a right to trial by jury.
The trial court imposed an upper term based on judicially-found facts deemed constitutionally permissible by the courts of California and re-sentencing is not required on count I of case No. MCR027063.
III.
THE COST OF THE PROBATION REPORT
Appellant contends the trial court erroneously ordered him to pay $330 for the cost of a presentence report without making any finding on his ability to pay.
He submits:
“[T]he probation officer stated in the report that the defendant had no recent employment, was the father of twins, and was a drug addict. And the fines imposed at sentencing increased the defendant’s indebtedness by over $2000 even if he was broke already. The $330 fee for a presentence report should not have been passed to the defendant.”
Section 1203.1, subdivision (a) authorizes a court to impose fines when it suspends the imposition or execution of sentence and grants probation. Section 1203.1b specifically authorizes the recoupment of certain costs incurred for probation and the preparation of preplea or presentence investigations and reports on the defendant’s amenability to probation. The section requires determinations of amount and ability to pay, first by the probation officer and, unless the defendant makes a knowing and intelligent waiver after notice of the right from the probation officer, a separate evidentiary hearing and determination of those questions by the court. In People v. Valtakis (2003) 105 Cal.App.4th 1066, the court held that a defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of section 1203.1b waives the claim on appeal. This is consistent with the general waiver rules of People v. Welch (1993) 5 Cal.4th 228 and People v. Scott (1994) 9 Cal.4th 331. In any event, the Legislature has provided mechanisms in section 1203.1b for adjusting fees and reevaluating ability to pay without an appeal anytime during a probationary period (§ 1203.1b, subd. (c)) or the pendency of any judgment (§ 1203.1b, subd. (f)). (People v. Valtakis, supra, 105 Cal.App.4th at pp. 1068-1070, 1076.)
Here, appellant’s failure to object at sentencing waives the issue on appeal under the authority of Valtakis.
IV.
FINDINGS UNDER WELFARE AND INSTITUTIONS CODE SECTION 3051
Appellant contends the trial court was obligated to make findings under Welfare and Institutions Code section 3051.
He argues:
“On December 8, 2006, at the time appellant was entering his plea, the prosecutor agreed to waive the filing of a Welfare and Institutions Code section 3051 petition, and stipulated that the defendant was an addict or in danger of becoming an addict. The parties agreed that they would pursue the matter at sentencing, but there was no mention of a request for placement at the California Rehabilitation Center at sentencing. [¶] ... [¶]
“Appellant submits that section 3051 does not require that a defendant affirmatively request a referral to CRC above and beyond what was already done in this case. Once the court has credible information establishing addiction, section 3051 requires the court to initiate proceedings for the civil commitment of any person who appears to be addicted to narcotics or in imminent danger of addiction ‘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.’ (People v. Cruz (1990) 217 Cal.App.3d 413, 419.)”
Welfare and Institutions Code section 3000 et seq. establishes a program for the nonpunitive treatment and control of narcotics addicts, including persons convicted of criminal offenses, implemented by periods of treatment within the California Rehabilitation Center (CRC) and outpatient supervision. (People v. Cruz (1990) 217 Cal.App.3d 413, 419.) “Welfare and Institutions Code section 3051 … 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.) Welfare and Institutions Code section 3051 provides in relevant part:
“Upon conviction of a defendant for a felony, ... 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.”
Thus, exercise of discretion under Welfare and Institutions Code section 3051 involves a two-step process. First, the court must determine whether the defendant is addicted or in danger of becoming addicted to narcotics. If so, the court must then either suspend execution of sentence and order initiation of CRC commitment proceedings or find the defendant unsuitable for such commitment. (People v. Masters, supra, 96 Cal.App.4th at p. 704.)
In People v. Scott, supra, 9 Cal.4th 331, our Supreme Court held that the failure to raise at sentencing “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” results in waiver. (Id. at p. 353.) The court stated: “[a]lthough the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (Ibid.) In order “to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them[,]” the failure to raise sentencing errors at sentencing precludes raising them on appeal. (Ibid.) Following the rationale of Scott, the court in People v. Planavsky (1995) 40 Cal.App.4th 1300, 1302, held that a defendant’s failure to request civil commitment under Welfare and Institutions Code section 3051 at sentencing precludes him from raising the issue on appeal. We agree with the Planavksy court’s resolution of this issue. Therefore, we find that appellant’s claim is waived. (Accord, People v. Lizarraga (2003) 110 Cal.App.4th 689, 691-692; People v. Downey (2000) 82 Cal.App.4th 899, 911.)
In his reply brief, appellant contends he was denied his constitutional right to effective assistance of counsel by trial counsel’s failure to request an evaluation pursuant to Welfare and Institutions Code section 3051. “A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 386.) However, “‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] … unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
As noted in People v. Lizarraga, supra, 110 Cal.App.4th 689, there may be many reasons why counsel might not request a CRC commitment. For example, the defendant may have advised trial counsel 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. Under California law, a criminal defendant is not entitled to worktime or conduct credits for time served at CRC. Thus, the defendant may prefer serving a prison sentence, which could be substantially reduced by worktime credit under section 2933. If the defendant were instead committed to CRC and later excluded, he might end up serving more time in confinement than he otherwise would have. (People v. Lizarraga, supra, 110 Cal.App.4th at p. 693.)
As respondent observes: “The fact that neither appellant nor his counsel raised the matter at sentencing, despite counsel’s prior statement that he intended to do so, strongly indicates that appellant no longer desired that option.” Appellant has failed to affirmatively demonstrate ineffective assistance of trial counsel and his contention must be rejected.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., KANE, J.