Opinion
F041722.
11-5-2003
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO OTERO, Defendant and Appellant.
Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Dawson, J.
A jury convicted appellant Humberto Otero of possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378), and in a separate proceeding the court found true enhancement allegations that appellant had served three separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). The court denied appellants request to initiate civil commitment proceedings under Welfare and Institutions Code section 3051 and imposed a prison term of six years, consisting of the three-year upper term on the substantive offense and one year on each of the three prior prison term enhancements.
All further statutory references are to the Welfare and Institutions Code.
On appeal, appellant contends the court abused its discretion in refusing to initiate civil commitment proceedings under section 3051.
DISCUSSION
Because the facts of the instant offense are not relevant to the issues raised on appeal, we will forgo recitation of those facts.
"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.) The first paragraph of 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 [CRC] . . . unless, in the opinion of the judge, the defendants 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." (Emphasis added.) The second paragraph of section 3051 provides that (1) if the court orders a petition for CRC commitment to be filed under the provisions set forth above, upon the filing of that petition the defendant shall be examined by a physician (or two physicians if the defendant requests) to determine whether the defendant is addicted or in imminent danger of being addicted, and (2) if the report of the physician(s) answers this question in the affirmative, the court must conduct a hearing to "determine whether the person is addicted . . . or is . . . in imminent danger of addiction" (§ 3106).
Appellants argument focuses on two of the determinations required under section 3051: (1) what he characterizes as the "preliminary determination," i.e., whether a defendant "may be addicted" (§ 3051, emphasis added) or "may be in imminent danger of becoming addicted" (ibid.), which the court must make at the outset; and (2) the "ultimate determination," i.e., whether the defendant is addicted or is in imminent danger of being addicted, which the court can make only after making the preliminary determination, considering a physicians report and conducting another hearing. Appellant argues that the trial court "failed to recognize that its duty was not to make the ultimate determination but was limited, instead, to a preliminary determination only"; in refusing to initiate civil commitment proceedings the court erroneously applied the standard for the "ultimate determination"; and therefore the matter must be "remanded for application of the correct standard by the trial judge." We agree.
We find instructive this courts decision in People v. Beasley (1983) 145 Cal.App.3d 16. In that case, as in the instant case, the defendant asked the court to initiate proceedings under section 3051. After an exchange in which defense counsel and the trial court discussed the conflicting evidence regarding the defendants addiction and in which defense counsel argued that "there should be . . . a consideration as to whether or not he is addicted or in imminent danger" and that physicians are "in more of a position" than the court to make that determination, the trial court denied the request, stating, "`[y]ou may be right but the legislature has given it to me to decide initially and at this point I dont believe he is addicted or in imminent danger. There is insufficient evidence of that. The evidence points in the other direction." (People v. Beasley, supra, 145 Cal.App.3d at p. 25, emphasis added.)
The appellate court held that the trial court erred in prematurely applying, without benefit of a physicians report, the "ultimate standard" of whether a defendant is addicted or is in imminent danger of addiction, rather than the correct statutory test of whether the defendant may be addicted or may be in imminent danger of becoming addicted. (People v. Beasley, supra, 145 Cal.App.3d at p. 25.) The court remanded for "application of the correct test." (Ibid.) The court noted "[t]he `may — `is distinction could be critical at the threshold stage of proceedings in cases such as the present one." (Ibid.)
With that distinction in mind, we review the courts comments in the instant case. Relatively early in the hearing, after hearing argument from the prosecutor and defense counsel and the comments of the representative of the probation department present in court, the court stated, "I just dont think hes in danger of becoming an addict. But . . . if there is something that can be done for him and . . . society is protected from him, I dont have any problem exploring that."
Later in the hearing, the following exchange occurred:
"MR. RAMIREZ [prosecutor]: [U]nder . . . [section] 3051, the strict language of the statute states that, `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
"THE COURT: I cant make that finding.
"MR. RAMIREZ: Therefore, Your Honor, if you cant make that finding, I dont believe that you can send this person to CRC . . . .
"THE COURT: I cant make that finding from looking in his record, let alone from the facts of this case."
At that point, defense counsel reiterated a suggestion he had made earlier that the court "appoint a psychologist to examine him and report back to the Court." The prosecutor countered that that was not the "proper method of trying to determine [appellants] eligibility," and the following exchange ensued:
"THE COURT: Based on the evidence before me, I can see why he might be interested in residential rehabilitation or the [CRC], but I cant make that threshold finding. [¶] Now, Mr. Harrington [probation officer], if I cant make that finding, will they make a finding at CRC, or will they look at the case when he goes to prison to see if he needs some treatment?
"MR. HARRINGTON: Well, Your Honor, if he goes to prison, hell be evaluated for the different problems he has, and hell be eligible for certain programs in prison. They wont second-guess the Court as to whether the Court should send him to CRC or not. Thats totally the Courts own independent evaluation of whether he is excessively criminal or not or in danger of being addicted.
"THE COURT: Im sorry. I cant make that finding that hes an addict or close to becoming an addict."
At that point, the court solicited further comment from both counsel. There was none. The court then stated its findings with respect to circumstances in aggravation and mitigation, concluded that probation was "not a suitable option" and stated, "Ive already made my finding in regard to a lack of threshold eligibility for a CRC commitment."
The foregoing reveals the following. Near the outset of the hearing the court stated, "I just dont think hes in danger of becoming an addict." And after hearing more argument the court concluded, "I cant make that finding that hes an addict or close to becoming an addict." As did the statement of the trial court in Beasley, these statements indicate the court erroneously applied the ultimate, and not the preliminary, standard.
We recognize that the record also reveals that sandwiched in between these two statements, the prosecutor quoted the correct standard as stated in section 3051, and the court responded, "I cant make that finding." (Emphasis added.) But although this statement, when considered in isolation, suggests a correct understanding of the standard to be applied, when we view this statement in the context of the entire hearing, and particularly in light of the two statements quoted in the preceding paragraph, we are not persuaded the court was aware it was required to make the "preliminary" determination of whether appellant may be addicted or may be in imminent danger of being addicted and that, in fact, that was the determination the court made. "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.) Because we cannot be confident the court understood and applied the proper legal standard, remand for the purpose of allowing the court to apply the correct standard is appropriate. (People v. Beasley, supra, 145 Cal.App.3d at p. 25; cf. People v. Bruce G., supra, 97 Cal.App.4th at p. 1248 ["[w]here a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate"].)
DISPOSITION
The courts denial of appellants request that the court initiate section 3051 proceedings is reversed, and the matter is remanded for further proceedings in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.