P. v. Brock

Filed 3/27/07 P. v. Brock 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Richard Mark Brock entered a negotiated plea of no contest to manufacturing methamphetamine. (Health & Saf. Code, 11379.6, subd. (a).) On appeal, defendant contends the court abused its discretion in refusing his request for a referral to the California Rehabilitation Center (CRC) pursuant to Welfare and Institutions Code section 3051. We disagree and shall affirm the judgment.

BACKGROUND

Butte Interagency Narcotics Task Force detectives executing a search warrant at defendants residence found several items consistent with the manufacture of methamphetamine, including several containers of bilayered liquid, laboratory glassware, tincture of iodine, acetone, stained paper towels, and mineral solvents.

Two weeks later, detectives executed another search warrant on property where defendant was staying and found a clandestine methamphetamine laboratory buried in a large in-ground pit, together with six HCl (hydrogen chloride) generators, bilayered liquid, pseudoephedrine packets, Red Devil lye, glassware, tincture of iodine, stained paper towels, acetone, and solvents.

In July 2005 defendant entered a plea of no contest to one count of manufacturing methamphetamine in exchange for the dismissal of charges that he manufactured methamphetamine at the second location, provided a place for the preparation or storage of a controlled substance (Health & Saf. Code, 11366.5, subd. (a)), and illegally disposed of hazardous waste (Health & Saf. Code, 11374.5).

On the same date, defendant entered a negotiated guilty plea in Butte County Superior Court case No. CM022946 to one misdemeanor count of making criminal threats against his wife, who had reported defendant swung a 15-inch knife in her direction, stabbed the front door of the house where she was living, and broke several windows.

In September 2005 defendant failed to appear for sentencing and a bench warrant was issued for his arrest.

The presentence probation report disclosed that defendant had five prior misdemeanor convictions but no felony convictions. In his interview for the preparation for that report, defendant admitted he is addicted to methamphetamine but denied manufacturing it. Defendant also requested a CRC commitment.

In a supplemental probation report, the probation officer recommended against referring defendant to CRC: It does not appear the defendant is eligible for a [CRC] commitment based on the quantity of contraband found and the sophistication of the methamphetamine lab. It is evident based on the facts of the case; the methamphetamine was not solely for personal use. Additionally, the upper term is warranted in this case and the recommended 7 year term exceeds the 6 year maximum term allowed by CRC.

At sentencing in March 2006 defense counsel renewed defendants request for a CRC commitment, noting again that defendant is addicted to methamphetamine, and explaining that defendant failed to appear for sentencing in September 2005 because he realized he had a serious drug problem and he was in the Three Rivers Recovery Lodge for the entire period from when he was not in court until he was brought back to court for sentencing. And he took that initiative on his own.

The court refused defendants request for CRC, stating, Ive weighed his history of violence, the fact that he did flee the jurisdiction even if it was for, in his mind, a good reason, the fact that he had multiple manufacturing even though it was for his personal use in the Courts opinion leads the Court to conclude that he would not be a good candidate for CRC. The court imposed the midterm sentence for the manufacturing methamphetamine conviction, noting that defendant has a relatively clean record.

DISCUSSION

Welfare and Institutions Code section 3000 et seq. establishes a program for the nonpunitive treatment and control of narcotics addicts, including persons convicted of criminal offenses, implemented by periods of treatment within CRC and outpatient supervision. (People v. Cruz (1990) 217 Cal.App.3d 413, 419 (Cruz).) Section 3051 of the Welfare and Institutions Code vests discretion in the trial court to determine whether evaluation for commitment to CRC is appropriate. (People v. Masters (2002) 96 Cal.App.4th 700, 703-704 (Masters).) Section 3051 provides, in relevant part: Upon conviction of a defendant for a felony, . . . 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 defendants 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.

Thus, exercise of discretion under [Welfare and Institutions Code] section 3051 involves a two-step process: The court must determine if defendant is addicted or in danger of becoming addicted to narcotics; and, if so, the court must either suspend execution of sentence and order initiation of CRC commitment proceedings or find the defendant unsuitable for such commitment. (Masters, supra, 96 Cal.App.4th at p. 704.)

As to the second step of this process, excessive criminality is the only consideration a sentencing court should look to for refusing to initiate CRC proceedings. (People v. Granado (1994) 22 Cal.App.4th 194, 200.) This determination necessarily involves an assessment, based upon the defendants record and probation report, whether the defendants main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality. (Cruz, supra, 217 Cal.App.3d at p. 421.) In making that determination, the court considers the defendants prior convictions, prior performance on probation or parole, and the nature and seriousness of the current offenses. (Id. at p. 420.) The broad discretion given the trial court to evaluate such information will not be disturbed on appeal in the absence of abuse. [Citations.] (Id. at p. 421.)

The courts comments at the sentencing hearing show that, from reading the probation report, it was well aware of defendants claim of methamphetamine addiction, and its statement that defendant manufactured methamphetamine for his personal use indicates it accepted that claim. Under these circumstances, no express finding of addiction was required. (Masters, supra, 96 Cal.App.4th at p. 704 [where the courts comments at the sentencing hearing show the court was well aware of the defendants addiction, no express finding of addiction is required].)

However, defendant contends the trial court abused its discretion in impliedly rejecting his CRC request for excessive criminality because his past criminal record, which includes five misdemeanors and one infraction, is minor, the evidence suggests his crimes were motivated only by his drug dependence, and the court improperly considered whether he fled the jurisdiction by voluntarily enrolling in a drug treatment program.

Even eliminating from the mix whether the court properly considered defendants having fled the jurisdiction by going into rehabilitation, the record supports the trial courts implicit finding that defendants behavior reflects a pattern of criminality. It shows a history of violence -- against his wife in Butte County case No. CM022946, and against another victim in his 1994 misdemeanor brandishing conviction -- and he operated methamphetamine labs at two locations, one of which was near two elementary schools. This is not a case in which, for example, the defendants crimes were nonviolent and his past offenses involved simple possession for personal drug use.

The court did not abuse its discretion in committing defendant to state prison rather than having proceedings initiated to commit him to CRC.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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