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The People v. Rachel Corrien Smith

March 1, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RACHEL CORRIEN SMITH, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF10350)

The opinion of the court was delivered by: Raye , P. J.

P. v. Smith

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After methamphetamine was found during a search of her house, defendant Rachel Corrien Smith pleaded no contest to one count of possession of methamphetamine for sale in exchange for a prison sentence no longer than two years and dismissal of five other charges.

On appeal, defendant contends the trial court should have instituted proceedings to commit her to the California Rehabilitation Center (CRC); imposed a $30, rather than a $40, court penalty assessment/court security fee; and imposed a $15, rather than a $35, penalty assessment under Government Code section 76000. The People concede the last contention only. We agree with the People.

DISCUSSION*fn1 I. Defendant has forfeited any claim the trial court abused its discretion in failing to initiate CRC proceedings.

Welfare and Institutions Code section 3051 provides, in pertinent part: "Upon conviction of a defendant for a felony, or following revocation of probation previously granted 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 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." As the parties acknowledge, CRC is the "narcotic detention, treatment, and rehabilitation facility" referred to in the statute. Whether a defendant is to be referred to the CRC is a matter within the trial court's discretion. (People v. Masters (2002) 96 Cal.App.4th 700, 703-704; People v. Moreno (1982) 128 Cal.App.3d 103, 107.)

The record reveals that defendant agreed to imposition of a prison sentence no greater than two years and did not raise the issue of a CRC commitment in the trial court at sentencing. A defendant's failure to raise the issue of a CRC commitment in the trial court forfeits a claim on appeal that the trial court erred in failing to determine whether a CRC referral was warranted. (People v. Lizarraga (2003) 110 Cal.App.4th 689, 691-692 (Lizarraga); see also People v. Planavsky (1995) 40 Cal.App.4th 1300, 1302, 1310-1312 (Planavsky) [holding same].)

Defendant argues in her reply brief that Lizarraga and Planavsky "wrongly apply the waiver doctrine articulated in People v. Scott [(1994) 9 Cal.4th 331] to CRC commitments" because Welfare and Institutions Code section 3051 presents "a mandatory sentencing scheme not a discretionary one." To the contrary, we find the reasoning of Lizarraga and Planavsky persuasive. Defendant advances no reason in law or logic why the general waiver principle adopted in Scott cannot or should not encompass the discretionary sentencing decision of committing a defendant to CRC. Because defendant did not request the trial court to order such a commitment, she cannot raise the issue for the first time here.

Defendant also contends that finding forfeiture here would frustrate the legislative intent behind Welfare and Institutions Code section 3051, which she claims is to "provide treatment for those addicted or in danger of becoming addicted to narcotics." She acknowledges that Planavsky and Lizarraga rejected similar arguments, but asserts those cases are wrong. We are unpersuaded. As stated in Planavsky, and reiterated in Lizarraga, "there is no necessary relationship behind a policy in favor of rehabilitation and a mandate that a request for CRC commitment may be raised for the first time on appeal." (Planavsky, supra, 40 Cal.App.4th at p. 1313; see Lizarraga, supra, 110 Cal.App.4th at p. 692.)

II. The court security fee of forty dollars does not violate the plea agreement.

On October 10, 2010, defendant signed the plea form indicating her desire to plead no contest. The form includes her written acknowledgement that the court would order her to pay a "$30 court security fee[]." On that date, Penal Code section 1465.8, former subdivision (a)(1) provided, in relevant part: "To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be ...


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