THE PEOPLE v. JOSHUA LEYVA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA LEYVA, Defendant and Appellant.

B217410

Decided: November 23, 2010

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FACTUAL SUMMARY

The record reflects that on December 28, 2005, appellant committed the offenses at issue in case No. KA073545, and, on April 11, 2008, he committed the offense at issue in case No. KA082779.   In particular, as to case No. KA073545, police found a baggy of marijuana on appellant's person, and found in his backpack a smaller baggy containing marijuana, a digital scale, 28 new plastic baggies, and a small paper bindle containing cocaine.

CONTENTIONS

Appellant claims the trial court erroneously failed to refer him to the California Rehabilitation Center (CRC).  Respondent claims the abstract of judgment must be amended to reflect the trial court imposed two $30 Government Code section 70373 criminal conviction assessments.

DISCUSSION

1. The Trial Court Did Not Err by Failing to Refer Appellant to CRC.

a. Pertinent Facts.

The preconviction probation report prepared for a January 20, 2006 hearing in case No. KA073545 indicates as follows.   Appellant was born in July 1985.   In 1999, he suffered a sustained petition for possessing a knife on school grounds and for violating Penal Code section 12020, subdivision (a), and he was placed home on probation.   In 2000, he suffered a sustained petition for two counts of vandalism and was placed home on probation for two years.   On February 26, 2002, he suffered a sustained petition for possessing marijuana (Health & Saf.Code, § 11357, subd. (b)) and was suitably placed.   On February 26, 2002, he also suffered a sustained petition for battery against a school employee and petty theft, and was suitably placed.   In April 2002, he suffered a sustained petition for possessing marijuana (Health & Saf.Code, § 11357, subd. (b)) and was suitably placed.   As an adult, in 2004, appellant was convicted of petty theft and placed on summary probation for two years.

The report reflects there was an “[i]ndication/admission of significant substance problem,” i.e., he had suffered several convictions for his involvement with controlled substances.   The report stated appellant was not a stranger to the criminal justice system, he had convictions as early as when he was 14 years old, and the majority of the crimes appeared to involve controlled substances.   The report listed as aggravating factors that appellant's adult prior convictions or juvenile adjudications were numerous or of increasing seriousness.   The report recommended that the court place appellant on probation and that appellant cooperate in a drug counseling program.

On January 20, 2006, in case No. KA073545, appellant pled no contest to counts 1 and 3.1 The court on that date suspended imposition of sentence and placed appellant on formal probation for three years on the conditions, inter alia, that he serve a term in local custody, register as a narcotics offender, and cooperate with the probation department in a drug treatment plan.

On January 4, 2007, the court read a December 2006 supplemental probation report.   The court found appellant not in compliance with his probation conditions and found that it appeared that he had abandoned probation.   The court summarily revoked probation and issued a bench warrant.

On April 11, 2008, appellant committed the offense at issue in case No. KA082779.   A preconviction probation report prepared for an April 30, 2008 hearing in that case reflects appellant's criminal history.2  The report also reflects appellant told a pretrial investigator that appellant drinks alcohol about three times a week and smokes marijuana four times a week.   The report further reflects appellant stated he was in good health.

The report also reflects as follows.   Appellant deserted probation in case No. KA073545, and he was not in compliance with his payment plan in that case.   He did not appear to benefit from probation and was on probation when he committed the April 11, 2008 offense.

The report listed as aggravating factors that appellant was on probation when he committed the offense, his prior performance on probation was unsatisfactory, and his prior adult convictions were of increasing seriousness.   The report recommended that appellant be sentenced to state prison for the “high-base” term.

On May 29, 2008, in case No. KA082779, appellant pled guilty.   The court sentenced him to prison for three years, suspended execution of sentence, and placed him on formal probation for three years on the condition, inter alia, that he cooperate in a counseling plan.

Moreover, on May 29, 2008, in case No. KA073545, the court found appellant in violation of probation based on appellant's guilty plea in case No. KA082779.   Based on the two counts in case No. KA073545, the court sentenced appellant to prison in case No. KA073545 for two 8-month terms, respectively, each to be served consecutively to his prison term in case No. KA082779.   The court suspended execution of sentence as to each eight-month term, reinstated probation, and ordered appellant to return to court on August 27, 2008.

A supplemental probation report prepared for an August 27, 2008 hearing in case Nos. KA073545 and KA082779 reflects as follows.   In July 2008 and on August 4, 2008, appellant submitted to drug testing and, in each instance, a few days later, the results were positive for marijuana.   Appellant submitted his last payment toward his payment plan in case No. KA073545 in 2006, and he had made no payment toward his payment plan in case No. KA082779.   The report recommended that appellant continue on probation and complete a drug program.

On August 27, 2008, appellant failed to appear in court and the court issued a bench warrant.   He was later arrested and appeared in court on May 12, 2009.   A probation report prepared for a May 28, 2009 hearing reflects appellant's father told the probation officer that appellant had an alcohol abuse problem and his father hoped to have appellant participate in a rehabilitation program.

As to case No. KA073545, the report reflects appellant violated probation by failing to enroll in, and complete, a drug counseling program and by failing to obey his probation conditions.   Appellant stopped reporting to the probation department, was arrested in case No. KA082779, tested positive for marijuana use on August 25, 2008, and was delinquent in his payment plan.

The probation officer indicated appellant had performed poorly on, and had deserted, probation.   However, the probation officer did not recommend imprisonment and stated appellant obviously had an alcohol and/or drug dependency issue.   The probation officer recommended that in case Nos. KA073545 and KA082779, the court reinstate probation and release appellant into a six-month rehabilitation program.

On June 19, 2009, at the probation violation hearing in the above two cases, Armando Medina, a probation officer, testified there was no evidence appellant had ever submitted proof of enrollment in a drug rehabilitation program.   Medina recommended that appellant be given another chance to enroll in such a program because appellant had been dealing with an alcohol and drug problem for some time.   During questioning by the court, Medina acknowledged appellant had violated multiple probation conditions.

Appellant testified he had tested positive for marijuana use but had not subsequently used marijuana.   Appellant testified he did not appear in court on August 27, 2008, because his son had been born on that date.   Appellant did not testify as to what, if any, efforts he made to come to court before he was arrested on the warrant and appeared in court on May 12, 2009, but testified he did not come to court because he was afraid “of the time I knew I had to do.”   The court indicated that even though the standard of proof for probation violations was not proof beyond a reasonable doubt, appellant had violated almost every one of his probation conditions beyond a reasonable doubt.

During the sentencing hearing, appellant's father indicated that, during the last eight months, appellant had changed and had begun making responsible decisions.   The court commented appellant did not change enough to appear in court or to report to the probation department.   The court indicated it would recommend a drug program and a fire camp/work camp for appellant.   The court indicated it had given appellant multiple opportunities in the past but appellant had not taken advantage of them.

Appellant asked that he be given one last chance on probation, indicated he would benefit from a rehabilitation program, and asserted his family had noticed a change in him since appellant's son had been born in August 2008.   The court indicated appellant had been given multiple “last chance[s]” and later asked appellant's counsel if he had anything further.   Appellant continued to argue for probation and a rehabilitation program, and the matter was later submitted.

The court lifted the suspension of execution of sentence in case No. KA082779, resulting in a prison commitment of three years, and lifted the suspension of execution of sentence in case No. KA073545, resulting in a prison commitment in that case for a consecutive term of eight months on each of counts 1 and 3. The court told appellant that “if in fact really you are getting away from the drugs and don't feel you need that drug rehabilitation,” the court would recommend fire camp/work camp if appellant wanted the court to do so.   Appellant replied yes.   The court recommended that appellant be placed in fire camp/work camp or, if that was not possible, a drug program in prison.   Appellant never requested that the court refer him to CRC.

b. Analysis.

Appellant claims that on June 19, 2009, the trial court erroneously failed to refer him to CRC pursuant to Welfare and Institutions Code section 3051.3  The claim is unavailing.   Appellant was aware of his alleged drug problem, if any, as of June 19, 2009.   He had ample opportunities during sentencing argument on that date to request a CRC referral.   The court afforded appellant a meaningful opportunity to object, and this did not require that the trial court expressly provide a tentative disposition.  (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)   Appellant made no request for CRC commitment;  therefore, he waived the issue of whether the trial court erroneously failed to refer him to CRC. (People v. Planavsky (1995) 40 Cal.App.4th 1300, 1302.) 4

Moreover, even if the issue was not waived, on the present silent record, it is presumed the court properly exercised its discretion and determined appellant was not eligible for CRC. (People v. Brandon (1989) 206 Cal.App.3d 1565, 1569;  cf.  People v. Flower (1976) 62 Cal.App.3d 904, 909-910.)

Further still, the probation reports reflect appellant had committed multiple offenses apparently unrelated to narcotics, his performance on probation was poor, and the offenses to which he pled no contest were serious.   The trial court's failure to refer appellant to CRC was not an abuse of discretion, since the record provides evidence of a pattern of criminality rendering appellant unfit for referral.  (Cf. People v. Cruz (1990) 217 Cal.App.3d 413, 416-420;  People v. Brandon, supra, 206 Cal.App.3d at p. 1571;  People v. Urdiain (1986) 179 Cal.App.3d 330, 331-333;  People v. Flower, supra, 62 Cal.App.3d at pp. 910-912.)

2. The Abstract of Judgment Must Be Corrected.

In case No. KA073545, the trial court, on June 19, 2009, orally imposed a $30 Government Code section 70373 criminal conviction assessment as to each of counts 1 and 3, but the abstract of judgment fails to reflect this.   Respondent correctly claims the abstract of judgment must be amended to reflect the assessments.  (People v. Mitchell (2001) 26 Cal.4th 181, 185-188;  People v. Castillo (2010) 182 Cal.App.4th 1410, 1412.)

DISPOSITION

The orders revoking the suspensions of executions of sentences are affirmed.   The trial court is directed to forward to the Department of Corrections an amended abstract of judgment in case No. KA073545 reflecting that in that case the trial court imposed two $30 Government Code section 70373 criminal conviction assessments.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Count 2 alleged appellant transported marijuana (Health & Saf.Code, § 11360, subd. (a)).  The January 20, 2006 minute order reflects this count was dismissed pursuant to negotiations..  FN1. Count 2 alleged appellant transported marijuana (Health & Saf.Code, § 11360, subd. (a)).  The January 20, 2006 minute order reflects this count was dismissed pursuant to negotiations.

FN2. The report prepared for the January 20, 2006 hearing, and the report prepared for the April 30, 2008 hearing, appear to differ with respect to appellant's criminal history as follows.   In the report prepared for the April 30, 2008 hearing, it appears that in 1999, appellant suffered a sustained petition only for possessing a knife on school grounds;  in 2000, only for one count of vandalism;  and in February 2002, only for possession of marijuana and battery against a school employee.   To the extent the reports differ as indicated above, we rely on the criminal history reflected in the report prepared for the April 30, 2008 hearing..  FN2. The report prepared for the January 20, 2006 hearing, and the report prepared for the April 30, 2008 hearing, appear to differ with respect to appellant's criminal history as follows.   In the report prepared for the April 30, 2008 hearing, it appears that in 1999, appellant suffered a sustained petition only for possessing a knife on school grounds;  in 2000, only for one count of vandalism;  and in February 2002, only for possession of marijuana and battery against a school employee.   To the extent the reports differ as indicated above, we rely on the criminal history reflected in the report prepared for the April 30, 2008 hearing.

FN3. Welfare and Institutions Code section 3051 states, in relevant part, “[u]pon 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.”.  FN3. Welfare and Institutions Code section 3051 states, in relevant part, “[u]pon 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.”

FN4. The probation report prepared for an April 30, 2008 hearing reflects appellant stated he was in good health.   Appellant and his father indicated during sentencing on June 19, 2009, that appellant was a changed person.   The court indicated it could recommend fire camp/work camp if appellant wanted this and did not feel he needed drug rehabilitation.   Appellant replied yes.   We need not reach the issue of whether, based on these facts, any trial court error in failing to refer appellant to CRC was invited with the result appellant waived the issue for that reason also..  FN4. The probation report prepared for an April 30, 2008 hearing reflects appellant stated he was in good health.   Appellant and his father indicated during sentencing on June 19, 2009, that appellant was a changed person.   The court indicated it could recommend fire camp/work camp if appellant wanted this and did not feel he needed drug rehabilitation.   Appellant replied yes.   We need not reach the issue of whether, based on these facts, any trial court error in failing to refer appellant to CRC was invited with the result appellant waived the issue for that reason also.

CROSKEY, Acting P. J. ALDRICH, J.