IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
August 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL ALLEN HYMAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F7571)
The opinion of the court was delivered by: Raye , P. J.
P. v. Hyman
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On September 7, 2008, defendant Michael Allen Hyman entered a motel room and punched the resident in the face while another man took a DVD player from the bed. Defendant and the other man then fled the room.
Defendant pled no contest to first degree burglary. (Pen. Code, § 459.) The court imposed a stipulated prison term of six years, suspended execution of sentence, and placed defendant on three years' formal probation.
Defendant subsequently admitted violating probation by testing positive for methamphetamine. The court imposed the suspended six-year term with 236 days of actual presentence credit and 118 days of presentence conduct credit.
On appeal, defendant contends it was an abuse of discretion for the trial court to deny his request to be evaluated for commitment to the California Rehabilitation Center (CRC). We shall affirm.
Defendant requested probation at the sentencing hearing. In support of his claim, defendant presented testimony describing his long-term addiction to methamphetamine and his fitness for probation.
The People replied by pointing out defendant's extensive criminal record and failed CRC placement. The probation report detailed defendant's criminal history, which included six prior felony convictions, seven misdemeanor convictions, seven probation violations, four parole violations, and a failed CRC commitment since 1994. It noted defendant was out of prison for only 23 hours when he committed the robbery in this case.
The court found defendant's burglary conviction and numerous prior felony convictions rendered him presumptively ineligible for probation. In addition, the court observed defendant should not have been placed on probation in light of his criminal history and numerous parole and probation violations. The court rejected defendant's request to continue sentencing for six months to allow defendant to participate in a drug program. Finding no legal basis to overcome the presumption against probation, the court denied probation and executed the original six year prison term.
After the court pronounced sentence, defense counsel asked "that the Court consider CRC. I didn't want to interrupt the Court, but he is asking for that." The court denied the request stating, "He was already previously sentenced to CRC and was either excluded or washed out. I don't know what it was. That request is denied."
Defendant contends the reason given by the trial court for denying the requested CRC evaluation, his previous failed CRC commitment, was not a proper reason for the court's decision.
Consideration of a Welfare and Institutions Code section 3051 request involves a two-step process. (People v. Granado (1994) 22 Cal.App.4th 194, 200 (Granado).) First, the court determines whether the defendant "'may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics . . . .' Second, if the court makes the preliminary determination of addiction or imminent danger thereof, the court must either suspend execution of sentence and order initiation of CRC commitment proceedings or find the defendant unfit for such commitment." (Ibid.)
As to the second step of the process, case law establishes that "excessive criminality is the only consideration a sentencing court should look to for refusing to initiate CRC proceedings." (Granado, supra, 22 Cal.App.4th at p. 200.) In making that determination, the court considers the defendant's prior convictions, prior performance on probation and parole, as well as the nature and seriousness of the current offense. (People v. Cruz (1990) 217 Cal.App.3d 413, 420.)
Defendant notes there was no dispute that he was an addict, and a prior failed CRC commitment is not excessive criminality justifying the court's refusal to initiate CRC proceedings. While the court denied probation based on his criminal record, defendant asserts this is irrelevant to a CRC referral since he was presumptively eligible for CRC and presumptively ineligible for probation. Finding no decisions on whether a failed CRC commitment establishes excessive criminality, defendant contends his case is like other cases finding an abuse of discretion in denying CRC referral.
"[C]complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) Defendant forfeited the issue by not objecting to the court's reasons for rejecting a referral.
Defendant's contention is precisely the type of claim that should first be addressed to the trial court. Whether to grant probation was the primary focus of defendant's sentencing hearing, and his extensive criminal record was the court's justification for denying probation. CRC commitment was an afterthought, brought up after the court denied probation and imposed sentence. Had defendant objected to the court's reasons for denying CRC referral, we are convinced that the court would have given defendant's extensive criminal record as a reason for denying CRC referral. No judge could have reasonably done otherwise. Contrary to defendant's assertion, his criminal record of multiple felony convictions and repeated parole and probation violations establishes a pattern of excessive criminality, which rendered him unsuitable for CRC evaluation. After all, he was released from prison a mere 23 hours before he committed the violent robbery in this case.
The judgment is affirmed.
We concur: NICHOLSON , J. HOCH , J.
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