Opinion
C043985.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. THOMAS WILLIAM MICHL, Defendant and Appellant.
Defendant Thomas William Michl appeals from his sentence of five years, four months in state prison following his guilty plea to possession of methamphetamine with intent to manufacture (Health & Saf. Code, § 11383, subd. (c)(1)) and child endangerment (Pen. Code, § 273a, subd. (a)). The sentence consisted of a middle term of four years for the methamphetamine conviction and a consecutive sentence of one year, four months for the child endangerment conviction.
Defendant claims the case should be remanded to the trial court for resentencing because the trial court failed to consider committing him to the California Rehabilitation Center (CRC). We shall conclude that defendant forfeited his right to raise the issue by failing to request a CRC commitment before the trial court.
BACKGROUND
Agents from the Butte Interagency Narcotics Task Force who were executing a search warrant at defendants residence encountered defendant and his five-year-old daughter. Inside the residence, agents found a cornucopia of items associated with the manufacture of methamphetamine, as well as significant quantities of marijuana and methamphetamine. Fire department officers who were called in to the residence designated the place a "special fire hazard" and noted that the likelihood of defendants child escaping from a fire within were "minimal" due to the condition of the residence and the obstacles present.
Defendant was charged in a multi-count complaint with manufacturing, possessing for sale and maintaining a place for selling or using methamphetamine, and felony child abuse. He agreed to plead guilty to one count of possession of methamphetamine with intent to sell, as well as child abuse, in exchange for dismissal of the remaining counts.
The probation report indicated that defendant, when interviewed, insisted he was manufacturing methamphetamine for his own personal use and did not intend to sell it to anyone. He claimed he needed the drug to counteract depression so he could care for his child. He admitted using methamphetamine since 1990 and expressed a desire to attend CRC as an alternative to a grant of probation.
The probation officer, noting defendant had previously been convicted for manufacturing methamphetamine and that he posed a danger to his child, recommended against probation, and in favor of imposing the middle term for the drug possession conviction. The probation report concluded: "Since the defendant has admitted he is addicted to methamphetamine and is willing to seek treatment, a commitment to the California Rehabilitation Center appears appropriate."
In their sentencing statement, the People vigorously opposed a CRC commitment. The People listed seven separate factors which weighed against sending defendant to CRC, including his excessive criminality and the danger to his child. The People concluded: "A commitment to [CRC] will place the defendant back into the community within one year. In effect, the defendant will receive no punishment for the crime of endangering the health of his five year old daughter; endangerment to the extent that great bodily injury was likely to result." No sentencing memorandum on defendants behalf appears in the record.
At the sentencing hearing, the trial judge noted that the probation report recommended the middle term, and solicited comments from counsel. The prosecutor immediately began, "This is a case that is not appropriate for CRC based on—" whereupon defense counsel interrupted by saying, "Your Honor has not asked whether or not this is CRC, he asked as to the appropriate term, which is the proper focus on that—." The remainder of the discussion centered on the appropriate prison term, with the prosecutor urging upper term and defense counsel arguing for the middle term, as recommended in the probation report.
At no point did defense counsel request or advocate a CRC commitment. The only mention of CRC other than as quoted above was a remark by the court that if defendant received the upper term he "wouldnt be eligible for CRC by definition."
APPEAL
Defendant argues that the trial court erred in failing to address the suitability of referring him to CRC for treatment. He claims he was a "prime candidate" for CRC in light of his addiction and the fact that he had not been convicted of any violent crimes. He notes that he was not statutorily ineligible and in fact a CRC referral was recommended in the probation report. Defendant requests a remand for reconsideration of a commitment to CRC.
In People v. Planavsky (1995) 40 Cal.App.4th 1300 (Planavsky), Division Three of the Court of Appeal for the Fourth Appellate District held that a criminal defendant may not urge on appeal that the trial court failed to consider a CRC commitment where he did not raise the issue in the trial court. Relying on the "`practical and straightforward approach toward waiver recently enunciated by the California Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 353" (id . at p. 1302), the court observed: "It is wasteful—and, frankly, an incentive for gamesmanship—to allow easily correctable sentencing errors to be raised for the first time on appeal where an appellate court has `no choice but to remand when there is prejudicial error. [Citation.] It is an expensive, time-consuming process that could be easily avoided by simply calling something to the trial courts attention." (Id. at p. 1311.)
This District recently embraced the holding of Planavsky in People v. Lizarraga (2003) 110 Cal.App.4th 689 (Lizarraga). In addition to agreeing with the rationale of Planavsky, we also rejected the argument that the policy considerations favoring the treatment and rehabilitation of drug-addicted defendants should outweigh the waiver (or forfeiture) doctrine in CRC commitment cases. (Id. at pp. 691-692.)
Planavsky and Lizarraga are controlling here. Not only did defense counsel not urge a CRC commitment, he interrupted the prosecutor when the latter began to discuss the issue. Nowhere in writing or at the sentencing hearing did defendant request treatment at CRC. Consequently, he forfeited the right to raise the issue on appeal.
We note parenthetically that defendants argument that the trial court lacked awareness of its discretion to commit defendant to CRC is absurd. The court stated that it had "read and reviewed" the probation report, which characterized a CRC referral as "appropriate," and that it reviewed letters from defendants mother and sister, each of which urged that defendant be sent to CRC for treatment. The court even noted at the hearing that an upper term commitment would disqualify defendant from CRC eligibility.
Here, trial counsel did not request a CRC referral. He even cut off the prosecutor when the latter tried to address the issue. For a number of plausible reasons, each of which can be viewed as a matter of reasonable tactics or strategy, defendants counsel decided instead to focus his efforts on securing a middle term prison commitment, an effort which, incidentally, was successful.
Even assuming for the sake of argument that defendant has not forfeited the CRC issue, we are satisfied the issue of whether to send defendant to CRC was considered by the trial court. Remand for reconsideration of this same issue would unquestionably be a wasteful endeavor.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.