Lead Opinion
I. Introduction
Bаck in the early Sixties the Legislature enacted section 3051 of the Welfare and Institutions Code. Under the statute, “if it appears” to a sentencing judge that the defendant is a narcotics addict, or in danger of becoming one, the judge must stop everything and hold a hearing on the possibility of civil commitment to the California Rehabilitation Center (CRC).
What happens, however, when a possibly addicted criminal defendant makes no request for civil commitment and there is no record made of any consideration of the idea by the trial judge? Must the conviction be reversed because it was error for the trial judge not to have raised the issue on his or her own? The currently predominant solution to that question is based on a legal fiction. The fiction is that the sentencing judge is presumed to hаve considered civil commitment even if the record is totally devoid of any indication to that effect.
We agree with that result, but do not resort to a fiction to reach it. We follow the more “practical and straightforward” approach toward waiver recently enunciated by the California Supreme Court in People v. Scott (1994)
II. Facts
In April 1992 Mark Anthony Planavsky stole a videocassette recorder from an apartment, pled guilty to burglary and was placed on three years’
In October of the same year, however, Costa Mesa police officers found Planavsky with a hypodermic syringe in his right hand; he was also under the influence of a controlled substance. At a hearing in November, Planavsky’s probation was revoked, but then reinstated, with these additional conditions: he was to receive a state prison sentence of four years, but execution of that sentence was to be suspended; he was to serve one hundred eighty days in county jail, but be allowed to enroll in a residential drug treatment program; any time spent in that program was to be credited toward his county jail time. Thus, essentially, his probation violation meant time in a residential drug treatment program.
In late October 1993 Planavsky tested positive for amphetamine use; in November 1993 he failed to report to his probation officer or submit to drug testing. These latest developments did prompt the institution of probatiоn revocation proceedings.
A probation revocation hearing was held in February 1994, and a sentencing hearing followed in late March. At the sentencing hearing Planavsky’s counsel requested yet continued probation, in which Planavsky would be ordered to serve a year in a Costa Mesa-based narcotics rehabilitation program known as the “Rap Institute.” The presentence report from the probation department spoke highly of the Rap Institute, which it described as offering a “highly structured, effective program which requires complete honesty and effort from its participants.” However, because Planavsky had violated the terms of his probation three times already,
The sentenсing judge was clearly familiar with the probation report. In colloquy with Planavsky’s counsel he revealed he knew the page of the report mentioning the Rap Institute; he also knew the report formally recommended denial of any probation. Further, the judge consented to listen to a representative of the Rap Institute, who indicated that the program had “good success” with “meth substance abusers.” At the end of the hearing the judge noted Planavsky’s “numerous violations” of probation, and stated if those violations did not exist, he would “be probably fairly willing to try the Rap program.”
However, the previous judge had determined that Planavsky’s “next violation” would be “state prison.” Even though the sentencing judge thought the Rap program “very helpful,” he decided to “follow the last judge” (presumably the one who presided over the November 1992 revocation hearing). Planavsky’s probation was revoked, with Planavsky to serve the four-year sentence the execution of which had been previously suspended; he was, of course, to receive credit for time already served.
Section 3051 provides that “if it appears to the judge” that a defendant “may be 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” there is a “pattern of criminality” rendering the defendant unfit “for
On appeal Planavsky now argues that since the record shows he may well be addicted to cocaine or methamphetamine, the trial court should have suspended proceedings to review whether he should be confined in “a” narcotics rehabilitation facility.
III. A Criminal Defendant Must Request Placement in the CRC to Preserve the Issue for Appeal
A. Present State of the Case Law
Section 3051 had its genesis in the Governor’s 1961 Special Study Commission on Narcotiсs. The commission produced a comprehensive set of procedures for, among other things, the establishment of the CRC under the jurisdiction of the Department of Corrections and the civil commitment,
The statute resulted in a series of reversals in early cases wherе trial judges formed mistaken notions defendants were not eligible for civil commitment. (See People v. Wallace (1963)
It was not until about 15 years after enactment, in People v. Flower (1976)
In Flower, the record clearly revealed the possibility of defendant’s narcotics addiction. The defendant admitted being a heroin user off and on for eight years. (
The Flower court avoided reversal by reasoning this way: The record raised the possibility the defendant might have been addicted. Therefore the trial court “was required” to consider the applicability of section 3051. (People v. Flower, supra, 62 Cal.App.3d at pp. 909-910, citing People v. Ortiz, supra, 61 Cal.2d at pp. 254-255.) Next, the law presumes “official duty has been regularly performed.” (Flower, supra,
Flower thus rested on a self-contained legal fiction. If a trial court is required to have done something, it is presumed to have done it, and the absence of any indication that it did not do it is not enough to refute the presumption.
More than a decade later, People v. Sanford (1988)
Sanford, interestingly enough, had its genesis in a “Wende brief,” that is, the appellate court itself raised the issue after the defendant’s appointed counsel had submitted an appellate brief indicating there were no issues to raise on appeal. (People v. Sanford, supra,
Having decided without explanation to limit Flower to cases where there was no formal finding of addiction, the Sanford court was ready to conclude the case. It could not “find that the [trial] court discharged its duty to initiate these proceedings when the court found the defendant to be addicted.” (People v. Sanford, supra,
Brandon cited Flower for the proposition that in the absence of a request for CRC commitment, it could be presumed that the trial court “properly exercised its discretion to conclude defendant was not eligible.” (People v. Brandon, supra,
Most recently, People v. Young (1991)
Young uncritically cited Sanford for the idea that the issue could be raised for the first time on appeal (People v. Young, supra,
But after that point was nailed down, the court added that even if the trial court was required to consider section 3051 commitment, the court would “adopt” the rationale of Flower and Brandon and presume that official duty had been regularly performed. (People v. Young, supra,
B. Why the Defendant Must Bring the Possibility of CRC Commitment to the Attention of the Trial Court
As we have just seen, the current state of the case law bearing on the question of CRC commitment in the context of silent records can be harmonized merely on the basis of whether the trial judge made a formal finding of addiction or imminent danger of addiction. There was a formal finding in Sanford—therefore the trial judge was obligated to suspend proceedings. There were no findings in Flower, Brandon and Young— therefore the trial judge was under no such obligation. As a judicially created rule, of course, the distinction has the advantage of being simple, and we might readily resolve the present case on that basis. The distinction is not, however, particularly persuasive.
For one thing, the distinction owes its existence to a concession made by the Attorney General in Sanford, yet the basis of that concession, the reasons behind the Attorney General’s “suggestion” that Flower be limited to cases involving no formal findings, and the appellate court’s adoption of that suggestion, were never articulated. The distinction comes to us as a judicially created rule without judicially articulated reasons.
For another, the distinction is counterintuitive. As a practical matter, a trial judge who makes a finding on the record that a defendant is an addict is far more likely to have actually mulled over the question of civil commitment under section 3051 in his or her own mind and reached a decision that the defendant is not a fit candidate. At least that judge is aware of some of the dynamics of section 3051, and therefore in all probability may be more accurately “presumed” to have regularly performed any official duty to “consider” civil commitment under the statute.
By the same token, a judge who makes no finding on the topic of addiction is more likely to have simply forgotten altogether about the
Further, the distinction does not mesh with the actual text of section 3051. Addiction can “appear” to the sentencing judge without being the subject of a formal finding. As the Ortiz court noted about the predecessor of section 3051, the statute does not set forth “any formalities” which the sentencing court must follow in making its “preliminary determination” of addiction. (People v. Ortiz, supra,
Accordingly, we do not resolve the instant case on the mere absence of a formal finding of addiction.
Flower’s approach, however, is similarly unconvincing. It may be brilliant metaphysics—deeming things that never actually happened to have been done because they were presumed to have been done when no one can prove otherwise
A much better approach is rooted in simple practical reality. “Routine defects in the court’s statement of reasons [for a sentencing choice] are easily prevented and corrected if called to the court’s attention.” (People v. Scott, supra,
Moreover, requiring the defendant to make a section 3051 request accords with the basic rules of appellate procedure. The classic formulation is that it is “unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, p. 321.) That rationale certainly applies to the stratagem of keeping mum about the possibility of civil commitment and then, if one is sent to prison, raise it on appeal. The tactic essentially sandbags the sentencing court.
Typical exceptions to the rule against raising issues for the first time on appeal, such as lack of jurisdiction, the issue being sоlely one of law concerning undisputed facts, or involving an issue of public importance, do not apply in the case of civil commitment under section 3051. The questions of whether the defendant “appears” to be an addict or in danger of becoming one and, if so, whether the defendant’s “pattern of criminality” renders him or her unfit for civil commitment are highly factual. So is the exception in the statute for a “pattern of criminality.”
We would add that requiring the defendant to request consideration under section 3051 is only common sense anyway. If there is to be any possibility of successful treatment at the CRC, the defendant must want it deeply enough to ask for it. Drug treatment is completely ineffectual without the addict’s actual desire to end the addiction.
There are two possible objections, however, to applying the practical approach of Scott to the instant case. First, what about the cases that just flat out say that CRC civil commitment can be raised for the first time on appeal? Second, what about retroactivity? Our Supreme Court expressly made the rules in both Scott and its progenitor, Welch, prospective only. (See People v. Scott, supra, 9 Cal.4th at pp. 357-358; People v. Welch, supra, 5 Cal.4th at pp. 237-238.)
We deal first with the expansive reading of section 3051 by some of the cases. Under the Flower rule, it indeed appeared that sentencing judges did have a sua sponte duty to consider civil commitment. While no Supreme Court case had formally said so, dicta in People v. Navarro, supra, 1 Cal.3d at page 263 (the “all instances” language quoted in footnote 5, ante) and People v. Ortiz, supra, 61 Cal.2d at pages 254-255 (to the effect that courts should implement, rather than frustrate, “strong legislative policy” favoring rehabilitation) certainly came very close. Later, Sanford and Young flatly declared that the issue of civil commitment under section 3051 could be raised for the first time on appeal.
We need not opine on the viability of the “strong legislative policy” favoring rehabilitation mentioned in Ortiz. Much, of course, has changed since the Sixties.
Furthermore, the cases which do allow CRC commitment to be raised for the first time on appeal do not represent a well-entrenched position in terms of stare decisis. Young merely cited Sanford; Sanford merely cited Pineda; and Pineda does not quite stand for the idea.
Pineda never specifically dealt with the failure on the part of a defendant to request civil commitment. Rather, as noted by People v. Peel (1993)
The crime in Pineda was simple possession of heroin, for which the defendant was sentenced, given his prior convictions, to 15 years in prison.
In addition to what the Pineda court considered the gross disproportionality of the defendant’s sentence, two other factors were present: (1) the strong policy in favor of rehabilitation and (2) the lack of certainty about what the trial judge would have done if he had known the “exact information about the prior offenses.” (People v. Pineda, supra,
The first reason given by the Pineda court—disproportionality—is not persuasive here because there is nothing about disproportionality that should excuse the failure to object to a sentence at trial. In fact, common sense suggests it should be the other way around. If a defendant receives a grossly harsh sentence, that is all the more reason to bring the matter to the trial judge who can make a speedy and inexpensive correction of any error.
Pinеda's second reason was that rehabilitation by civil commitment was “strongly supported by public policy.” As we have already seen, however, there is nothing about the policy behind section 3051 which excuses the failure to request civil commitment. If an addict is not motivated enough to request CRC commitment, he or she is hardly motivated enough for that commitment to work.
The final reason was uncertainty about what the trial judge might have done if he had known the “exact information about the prior offenses.” By itself, this reason is not sufficient to justify ignoring the usual need to raise an issue for the first time at the trial level. Indeed, as we have already shown, the very nature of civil commitment favors the usual rule.
2. Retroactivity
We now turn to the retroactivity issue. As the court in Scott pointed out, prior to Welch appellate courts had uniformly stated or implied that challenges to the reasonableness of probation decisions could be rаised at any
This case is different. As we have explained, prior to today’s decision two cases (Sanford and Young) had said that the issue of CRC сommitment could be raised for the first time on appeal. But, as we have also shown, the law was more complex than that. Flower, Brandon and even Young basically established a rule that a completely silent record showed no error as a matter of law. The critical feature was whether the trial court had made a formal finding of addiction.
Defendants and their counsel could hardly be said to have relied, as in Welch and Scott, on a well-established rule that the sentencing error complained of could be raised for the first time on appeal. In the context of 3051 CRC commitment, the most defendants could rely on was that where a formal finding of addiction had been made, the issue might be raised for the first time. No such formal finding, however, is present in this case, so Planasky’s trial counsel did not have the same expectations about the lack of a need to raise the issue at trial as did counsel in Welch and Scott. Because the result in this case is totally consistent with the case law at the time of the sentencing hearing, it is not unfair to apply the waiver rule to Planasky. We have simply articulated a new rationale for the result mandated by existing case law.
IV. Conclusion
Because Planavsky did not request civil commitment to the CRC at the trial level, he will not now be heard to claim that the trial judge’s failure to state any such consideration on the record was prejudicial error. The judgment is affirmed.
Wallin, J., concurred.
Notes
Unless otherwise specifically designated, all statutory references are to the Welfare and Institutions Code.
PIanavsky pled guilty to one count of violating Penal Code section 459 in the first degree, which at the time (and still does) carried а penalty of two, four or six years in state prison. (Pen. Code, § 461.) However, the guilty plea form mistakenly listed the sentence range as two, four or five years.
While we do not have a record of this particular revocation hearing, it is apparent from the remarks of the judge at the subsequent revocation hearing which is the subject of this appeal that Planavsky was sentenced to four years, with execution of the sentence suspended.
A section of the report entitled “Adjustment on Probation” recounted two instances when Planavsky had violated his probation: (1) the time in October 1992 when Planavsky was found to have a hypodermic syringe and be under the influence of a controlled substance, and (2) his January 1993 absconding from the Unity House program. We infer that the third time
The judge stated the credits in the probation and sentencing report were not correct. Planavsky’s counsel said total credits were 912 days, which the trial judge said was probably “close to correct,” but the figure was challenged by the deputy district attorney. The hearing ended with the trial judge stating “you have to spend some time trying to refigure the credits. I’m not sure what the credits are. Probation revoked and terminated. Anyway, that’s the sentence.” Because we reach the basic legal question presented by the appeal—was Planavsky required to specifically request CRC commitment?—it is immaterial what the precise amount of credits were and whether Planavsky may have been released prior to the filing of this opinion.
Here is the complete text of the first paragraph:
“Upon conviction of a defendant for any crime in any superior court, or following revocation of probation previously granted, 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.”
Planavsky tries to imply that the Rap Institute is “the” narcotics rehabilitation facility mentioned in section 3051, but nothing in the record supports the idea. (See § 3153 [providing for “halfway houses” under the authority of the Director of Corrections].)
Even though Planavsky may have completed his sentence, we still reach the question of whether a defendant must specifically request CRC commitment.
First, this case is not moot. Under section 3000, subdivision (b)(1) of the Penal Code, at the expiration of a term of imprisonment imposed under section 1170 (which Planavsky here was, because he received a determinate term), an inmate is to be “released on parole for a period not exceeding three years.” If, during those three years, Planavsky were to violate the terms of his parole, he would again face time in prison and today’s decision could affect the length and term of that imprisonment.
Second, even if this case were moot, the question presented is one capable of repetition yet evading review. Defendants who might be considered the best candidates for CRC commitment are generally the ones most likely to have served their terms prior to final disposition on appeal. A defendant who, for example, committed a first degree burglary motivated by the need to obtain money to feed a narcotics addiction, might receive a sentence as short as two years (Pen. Code, § 461), which, depending on worktime crеdits (Pen. Code, § 2933.5), could easily mean the defendant would be out in less than one year.
The court cited three cases, without elaboration, for this step in its reasoning.
First was People v. Navarro, supra,
The second case was People v. Perez (1987)
The third case cited by Sanford was People v. Lopez, supra,
For this step in its logic the Sanford court cited People v. Pineda, supra,
Bracamonte was not a civil commitment case at all. It involved possible commitment to the California Youth Authority (CYA). It is difficult to figure out what, on page 940 of the opinion, lends support to the Sanford court’s conclusion that the trial judge had a duty to initiate proceedings in the wake of a finding of addiction. The main issue in Bracamonte was whether CYA commitment was a “sentencing choice” requiring the trial court to state reasons on the record for rejecting it as an option. (See People v. Bracamonte, supra,
Essentially, the defendant argued he was really convicted in municipal court. The court rejected the contention, pointing out his guilty plea had been taken by a municipal court judge acting as a magistrate. The court went on to say that in any event it makes no sense to distinguish between thе location of guilty pleas for purposes of finding a pattern of criminality under section 3051. (See People v. Brandon, supra, 206 Cal.App.3d at pp. 1570-1571.)
Cf. Carroll, Through the Looking Glass and What Alice Found There, at chapter VII, The Lion and the Unicom: “ T see nobody on the road,’ said Alice. HD T only wish I had such eyes,’ the King remarked in a fretful tone. ‘To be able to see Nobody! And at that distance too! Why, it’s as much as / can do to see real people, by this light!’ ” (Original italics.)
The original quotation being, “But it does move,” attributed to Galileo Galilei after his recantation concerning the earth’s orbit around the sun. (See The Oxford Dict. of Quotations (4th ed. 1992) at p. 297.)
In her dissent in Scott, Justice Kennard expressed concern that requiring defendants to bring sentencing errors to the trial court’s attention was not in accord “with the daily reality of felony sentencing in our triаl courts.” (People v. Scott, supra, 9 Cal.4th at p. 359 (dis. opn. of Kennard, J.).) In particular she contended that a waiver requirement would not allow a “meaningful opportunity to identify and object to any sentencing error.” (Id. at p. 360.) Trial courts, however, retain authority to correct sentencing errors—in a manner favorable to the defendant—prior to execution of judgment (see People v. Karaman (1992)
The predecessor to section 3051 was literally enacted, as poet Philip Larkin once said of something else, before the Beatles’ first LP. Or before hippies, flower children and the Viet Nam war for that matter.
Concurrence Opinion
My reading of the record convinces me the superior court has been well aware of Planavsky’s drug abuse problem since
Planavsky was found to be in violation of his probation a mere seven months later, on November 12, 1992. Probation was revoked, a four-year prison sentence was imрosed, execution was suspended, and probation was reinstated. A new condition of this probation required Planavsky to enroll in a residential drug treatment program, and “the balance of any Orange County [j]ail sentence [could] be served in that program.”
When defendant violated probation again on March 25, 1994, more than a year after the prison sentence had been imposed, and the judge decided not to reinstate probation, he had no jurisdiction to do anything other than to order Planavsky to begin his previously ordered prison term. (People v. Chagolla (1984)
Morеover, the majority concedes defendant cannot prevail under existing law.
The result suggested by the case law does fly directly in the face of section 3051 of the Welfare and Institutions Code, however. When the Legislature says “shall,” I tend to think it means it.
A sampling of Planavsky’s sorry record includes giving false identification to a peace officer (1988), possession of a dangerous drug (1989), felony joyriding (1990), receiving stolen property (1990), possession of a hypodermic needle and giving false identification to a peace officer (1991), receiving stolen property (1991), first degree burglary (1992), joyriding (1992), numerous other arrests for serious offenses, and a fistful of probation violations as well.