Opinion
C037606.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. STARLA JUNE GARDNER, Defendant and Appellant.
Defendant Starla June Gardner appeals from the judgment committing her to state prison for possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The trial court previously had committed her to the California Rehabilitation Center (CRC) but, at defendants request, the court rescinded that commitment and imposed a term in state prison.
For reasons that follow, we reject defendants challenge to her sentence. However, we conclude that the trial court failed to impose a mandatory fee and penalty assessments. Accordingly, we shall modify the judgment and affirm it as modified.
PROCEDURAL BACKGROUND
On March 5, 1998, defendant pled no contest to possessing methamphetamine, a felony (case No. 98-569), and admitted having violated her probation in three misdemeanor prosecutions (case Nos. 97-1050, 96-6971, and 96-913). Probation was reinstated on the misdemeanor convictions, and defendant was given probation on the felony conviction on the condition, among others, that she serve 190 days in county jail.
Throughout the next two years, defendant repeatedly violated probation, but probation was reinstated each time. Finally, in November 2000, she was found to be in violation of probation in all cases and was returned to custody.
At the sentencing hearing on December 20, 2000, the trial court told defendant that it intended to deny reinstatement of probation and suggested that she would benefit from the treatment program at CRC to deal with her drug abuse. However, the court said that it was "not going to force [defendant] to go to CRC if she doesnt want to go" because such an attitude would cause her to "be rejected from the program." The court continued sentencing to December 27, to give defendant time to "think about whether she wanted to avail herself of the treatment program offered at CRC." The court noted that the sentence it would impose would "depend[] to a certain extent" on defendants decision regarding CRC.
On December 27, defense counsel told the court that defendant was "wavering" on a CRC commitment. Speculating that defendant probably would get out earlier if she received a prison commitment, counsel had told her that an average CRC stay was about 10 months, but that a CRC commitment was only "day for day" time credit, whereas a prison commitment carried a possibility of earning 50 percent good time credit. Based upon the calculation of credits, counsel believed that defendants period of custody was "probably going to be closer [to] about 8 months CDC [state prison] versus may be [sic] 10 [months] at CRC." The probation officer commented that defendant had credit for 148 actual days plus 72 days of conduct credit, for a total of 222 [sic] days.
The court then asked defendant if she would rather receive a term of "two years in state prison with credits as indicated" or have the court sentence her "to two years state prison and suspend the execution of that sentence and commit [her] to CRC?" After conferring with defense counsel, defendant said that she "would like to do CRC."
Accordingly, the court revoked probation on the felony drug conviction and sentenced defendant to state prison for two years, with credit for 148 actual days and 72 days of good/time work time, and suspended execution of sentence. The court then found that defendant was a narcotic addict and thus ordered the district attorneys office to file a petition for civil addict commitment. For the misdemeanor convictions, the court terminated probation and imposed an aggregate county jail sentence of 120 days, with credit for 120 days, to run concurrently with the felony commitment.
On December 29, the court stayed criminal proceedings on the felony and committed defendant to CRC for a period not to exceed two years.
On January 30, 2001, defendant returned to court. She had not yet been transported to CRC and now wanted to be committed to state prison, rather than CRC. The court warned her that to change the commitment would "mean[] a resentence not only [on the felony] but in her misdemeanor cases." Defense counsel then stated: "I indicated to [defendant], your Honor, that I sort of interpret that as meaning that she will probably end up losing [presentence custody] credits [on the felony conviction]. Shes understanding of that. She doesnt like that, but she is still desirous to do CDC [a state prison commitment instead of CRC]." The court continued the matter to consider defendants request.
At the next hearing on February 2, 2001, the court stated that the case "presented unusual procedural problems" and that it "would not have ordered concurrent sentencing [on defendants misdemeanor convictions] had [the court] known that [she] wished to be committed to state prison instead." The following colloquy then occurred: " [THE COURT:] If, in fact, it is [defendants] request that I reinstate criminal proceedings in Case 98-569, that is the felony case, then I will do as she requests. But she must also understand and she must agree that she can[] be resentenced in the three misdemeanor cases. I would impose a 60-day sentence as originally outlined in each case, but those sentences would run consecutively to one another, and she served more than enough time in county jail so she11 get credit for those three misdemeanor sentences, but it would reduce the total credits to which she would be entitled on her state prison [term].
"[DEFENSE COUNSEL]: [Defendant] understands that, your Honor. She does not agree, though, that she should lose her credits in [the felony case].
"THE COURT: This is your — the only way Im prepared to reinstate criminal proceedings is if she allows me to resentence her. Otherwise, I will simply commit her to CRC because I never would have imposed this sentence if Id known she was going to state prison.
"[DEFENSE COUNSEL]: Thats fine, your Honor. [Defendant] does want to do a CDC [state prison] commitment.
"THE COURT: Is that true, [defendant]?
"THE DEFENDANT: Yes, it is."
The court then ordered defendant to serve consecutive terms on the three misdemeanor convictions, for aggregate sentences of 120 days, with credit for the 120 days she already had served. The court reinstated criminal proceedings on the felony, set aside the CRC commitment, and sentenced defendant to a term of two years in state prison. The court ordered that this term would be served consecutively to the sentences imposed for defendants misdemeanor convictions, so that 120 days of credits would not be applied to the felony sentence. Accordingly, the court awarded defendant 65 days of actual custody credits and 32 days of conduct credits on the felony. The prosecution did not object to the reinstatement of criminal proceedings or to the sentence.
DISCUSSION
I
Defendant does not challenge the trial courts action in reinstating criminal proceedings and sentencing her to prison. Defendants sole argument is that, after the trial court awarded her 120 days of actual custody credits toward the CRC commitment on the felony and gave her time served on the misdemeanors, the court "acted in excess of its jurisdiction when it resentenced [defendant] in such a manner as to increase an otherwise lawful sentence." Specifically, she contends the court had no authority to resentence her on the misdemeanor convictions and run those terms consecutively to each other and to the felony term so that the 120 days of actual custody credits no longer would apply to the felony commitment.
The People retort that the entire resentencing is invalid because, in their view, "once the trial court committed [defendant] to CRC, it lost jurisdiction over [her] until she was rejected by CRC or terminated from its program," neither of which occurred here. Thus, the People argue, "the court had no jurisdiction to send [defendant] to prison, and [she] should be recommitted to CRC."
Defendant responds that, because the People failed to raise this issue in the trial court, they may not raise it on appeal. Hence, she reiterates her position that her felony term must be credited with an additional 120 days of actual custody credits, plus an appropriate amount of conduct credits.
As we will explain, the People are estopped from contesting the prison commitment, and defendant has waived the right to complain about the portion of the resentencing that deprived her of 120 days of actual custody credit toward the felony sentence.
A
Statutory procedures for committing a drug addict to CRC following a felony conviction are specific. When it appears to the trial court that the defendant may be addicted, or in imminent danger of becoming addicted, and that the defendant does not have a pattern of criminality indicating he or she is an unfit subject for commitment to CRC, the court must impose sentence, suspend the execution of that sentence, and direct the prosecutor to file a petition for CRC commitment. (Welf. & Inst. Code, § 3051 [further section references are to the Welfare and Institutions Code unless otherwise specified]; People v. Reyes (1988) 205 Cal. App. 3d 770, 774-775, 252 Cal. Rptr. 460.) In other words, a civil commitment proceeding to CRC cannot be commenced until sentence has been imposed and execution of that sentence has been suspended. "If, after a hearing, the judge finds that the defendant is a narcotic addict, or is by reason of the repeated use of narcotics in imminent danger of becoming addicted to narcotics, the judge shall make an order committing the person to [CRC]." (§ 3051.)
A CRC commitment is thus a unique interim disposition of a criminal case. Despite the fact that it is a judgment for purposes of appeal (Pen. Code, § 1237), it is not a final judgment (People v. Barnett (1995) 35 Cal.App.4th 1, 4). Whether the defendant successfully completes the program (§ 3200), is excluded from the program as unfit ( § 3053, subd. (c)), or serves all the available confinement time ( § 3201, subd. (c)), he or she must be returned to the trial court by CRC for resentencing. (People v. Barnett, supra, 35 Cal.App.4th at pp. 3-4.)
When a defendant is returned to the trial court by CRC, the trial court has broad discretion under the statutes to modify the unexecuted prison sentence, to deem it served, or even to dismiss the case if not barred by other provisions of law. However, the court may not increase the unexecuted sentence. (People v. Nubla (1999) 74 Cal.App.4th 719, 725, 729; § 3201.)
Here, after being committed to CRC, defendant was not returned to the trial court by CRC for resentencing pursuant to statute because she was unfit for the program. Instead, prior to being transported to CRC, she personally and voluntarily came before the court in the presence of the prosecutor, asking the court to rescind her commitment to CRC and send her to state prison. This request showed that defendant was not a fit subject for CRC because she had no desire to participate in, and benefit from, its programs. Therefore, as the trial court astutely observed in an earlier proceeding, it was inevitable that, if she had been transported there, CRC would have found defendant to be unfit for treatment at CRC and, thus, would have returned her to the court for resentencing. Under the circumstances, the only reasonable and responsible conclusion is that the courts premature reinstatement of criminal proceeding, at defendants request and in her presence without objection by the People, was not an act of a court without jurisdiction over the subject; it simply was an act in excess of the courts statutory power.
"When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the courts power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] Whether [the party] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when To hold otherwise would permit the parties to trifle with the courts. [Citation.]" (In re Griffin (1967) 67 Cal.2d 343, 347-348, 62 Cal. Rptr. 1, 431 P.2d 625.)
Such is the case here. Defendant consented to reinstatement of the criminal proceedings and a commitment to state prison. And by not objecting to the procedure and the state prison commitment, the People also are deemed to have consented to the outcome on the felony conviction. The ultimate judgment is consistent with what the court would have imposed in the first instance if defendant had said then that she did not want to go to CRC. And, as a practical matter, the ultimate judgment is consistent with what would have occurred if defendant had been transported to CRC and then returned to the court by CRC because she was unfit for treatment due to her lack of desire to benefit from the programs at CRC.
Under these circumstances, it would have made little sense to compel defendant to go to CRC only to be returned to the trial court for reinstatement of criminal proceedings. Considering the need for efficiency in the "functioning of the courts" and "other considerations of public policy," namely, unnecessary expenditure of taxpayer dollars to undertake the futile act of transporting defendant to CRC when it was evident that she would be rejected as unfit, the procedural irregularity was insignificant. (See In re Griffin, supra, 67 Cal.2d at p. 348.)
Consequently, by failing to object in the trial court and thus consenting to both the procedure and outcome, the People are estopped to question them on appeal because, "To hold otherwise would permit [them] to trifle with the courts. [Citation.]" (In re Griffin, supra, 67 Cal.2d at p. 348.)
B
Defendant does not complain on appeal about the procedure in the trial court or about her ultimate commitment to state prison for her felony conviction. Nor could defendant do so because, by consenting to it, indeed asking for it, she is estopped from challenging the procedure and outcome.
Nevertheless, defendant contends that the trial court erred in (1) resentencing her on the misdemeanor convictions and, by doing so, (2) giving her what, in effect, was a greater sentence on the felony (as a result of the loss of 120 days custody credit) than the court originally imposed when it committed her to CRC.
In People v. Karaman (1992) 4 Cal.4th 335, 842 P.2d 100 (hereafter Karaman), the California Supreme Court permitted the reduction of a prison sentence after the pronouncement of judgment because the sentence had not been executed due to a brief stay of execution. (Id. at p. 339.) The court reasoned that execution of a prison sentence does not begin until a defendant is delivered to the proper officer along with a commitment document. (Id. at pp. 344-345.) Thus, because execution of sentence in that case had not yet begun, the trial court had jurisdiction to reduce the sentence, but not to increase it. (Id. at pp. 350-353.) The basis for the inability to increase the sentence is the constitutional prohibition on double jeopardy, which bars an increase in punishment after a final judgment. (Id . at pp. 348-349.)
In People v. Howard (1997) 16 Cal.4th 1081, 946 P.2d 828 (hereafter Howard), the appellant was sentenced, execution of sentence was suspended, and she was placed on probation. (Id. at pp. 1084.) She argued that, after Karaman, the trial court had jurisdiction to reduce any prison sentence imposed when execution of sentence was suspended. (Id . at pp. 1086-1087.) However, the California Supreme Court held "Karamans narrow holding should not extend to probation revocation situations" (id. at p. 1092) because specific statutes and court rules bar a trial court from reducing a sentence where execution of sentence had been suspended for a rehabilitative placement on probation. (Id . at pp. 1092-1095.) In so holding, the court noted that dispositions other than a state prison sentence are not "punishment," nor is the placement on probation a "criminal judgment" because its primary purpose is rehabilitative in nature. (Id. at p. 1092; Pen. Code, § 1445.) Hence, the court limited Karaman to its facts and found that its holding is inapplicable to other statutory schemes. (Id . at pp. 1092-1095.)
In the case before us, constitutional concerns prohibiting an increase in punishment as given in a prison sentence are not involved because a referral to CRC is not punishment. (Howard, supra , 16 Cal.4th at p. 1092.) And defendant was not subject to a final judgment, including a prison sentence, because proceedings were suspended for rehabilitative purposes. Thus, as in Howard, any prohibition on an increase in the unexecuted sentence must be found in statutes.
The basis for the statutory rule that a sentence may not be increased after a proper return from CRC is found in section 3201, which provides that ". . . the period of commitment, including outpatient status, for persons committed pursuant to Section 3051, which commitment is subsequent to a criminal conviction for which execution of sentence to state prison is suspended, shall equal the term imposed under section 1170 of the Penal Code . . . ." (People v. Scott (1984) 150 Cal. App. 3d 910, 918, 198 Cal. Rptr. 124.)
However, defendant lacks standing to invoke this statutory protection because she elected to remove herself from the statutory scheme after the trial court had warned her that her decision to forgo CRC in favor of state prison would result in an increase of her sentence because 120 days of actual custody credit would be applied to her misdemeanor sentences, not her felony term. With that understanding, she asked for and received the state prison commitment.
Under the circumstances, defendant has waived the right to complain about the outcome. In effect, she got what she wanted, a prison commitment, in exchange for a specified sentence that was a necessary requisite to getting the prison commitment because, in the trial courts words, "the only way Im prepared to reinstate criminal proceedings is if [defendant] allows me to resentence her. Otherwise, I will simply commit her to CRC because I never would have imposed this sentence if Id known she was going to state prison."
Thus, in a case like this, "appellate courts will not find error even though the trial court acted in excess of jurisdiction . . . . The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed . . . to better the bargain through the appellate process." (People v. Hester (2000) 22 Cal.4th 290, 295, 992 P.2d 569.)
Accordingly, we reject defendants claim of error.
II
Although not raised by the parties, the trial court erred in failing to impose the $ 50 laboratory analysis fee required by Health and Safety Code section 11372.5, plus a $ 50 penalty assessment pursuant to Penal Code section 1464, and a $ 35 penalty assessment pursuant to Government Code section 76000. These fees and assessments are mandatory. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Because the trial court had no discretion to refuse to impose the fee and penalty assessments, the failure to order them constituted an unlawful sentence. (People v. Turner, supra, 96 Cal.App.4th at p. 1414.) Thus, we must modify the judgment to impose the laboratory analysis fee and penalty assessments even though no objection or argument about them was raised in the trial court or on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Turner, supra, 96 Cal.App.4th at p. 1415.)
DISPOSITION
The judgment is modified to impose a $ 50 laboratory fee pursuant to Health and Safety Code section 11372.5, a $ 50 penalty assessment pursuant to Penal Code section 1464, and a $ 35 penalty assessment pursuant to Government Code section 76000 . As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment reflecting these modifications and to forward a certified copy of the amended abstract to the Department of Corrections.
We concur HULL, J., and ROBIE, J. --------------- Notes: Defendant does not argue that the trial court denied her credit for 120 days of presentence time solely attributable to this case, which would be an unauthorized sentence. The courts imposition of a prison term consecutively to the misdemeanor sentences automatically denied multiple application of the same 120 days of presentence time credit on each consecutive term. Penal Code section 2900.5 requires that credit shall be given only once for a single period of custody attributable to multiple offenses for which consecutive sentences are imposed.