P. v. Ezell

Filed 1/30/07 P. v. Ezell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson, III, Temporary Judge. (Pursuant to Cal. Const., art VI, 21.) Affirmed with directions.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Steven Lee Ezell (appellant) seeks reversal of the trial courts denial of his request for a California Rehabilitation Center (CRC) evaluation referral. (Welf. & Inst. Code 3051.)^[1] We will remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On June 16, 2005, while on probation for a 2002 conviction in an earlier drug-related matter, appellant was arrested after police lawfully entered his home and discovered 4.8 grams of methamphetamine, 3.1 grams of marijuana, red phosphorus, numerous glass pipes and ephedrine pills, and 24 clear plastic baggies.^[2] Four days later, on June 20, the district attorney filed a felony complaint charging appellant with possession of methamphetamine (Health. & Saf. Code, 11377, subd. (a); count 1, a felony) and possession of drug paraphernalia (Health & Saf. Code, 11364, subd. (a); count 2, a misdemeanor). In addition, the complaint alleged four prison priors (Pen. Code, 667.5, subd. (b)) and that one of the priors was a strike. (Pen. Code  667, subds. (c) & (e)(1) and 1170.12, subd. (c)(1).)

At a settlement conference on September 13, 2005, appellant entered a negotiated plea bargain with the District Attorney of Riverside County. In exchange for dismissal of count 2 and three prison priors, appellant pled guilty to count 1, admitted one of the prison priors, admitted that he had served a prison term within the previous five years, and admitted the strike allegation. Appellant also admitted that he had violated his probation in the 2002 conviction.

In taking the plea, the court confirmed appellants understanding that his maximum exposure was seven years eight months and that the agreed upon sentence was 44 months in prison. The court stated that the matter would be referred out to the probation department, and defense counsel asked that the probation report be done as quickly as possible. The district attorney commented, Im not entirely sure what sort of report the defense is looking for. Just a standard type of report, Your Honor, going to reflect the classification of his housing and things of that sort, responded defense counsel. Neither the court nor counsel mentioned CRC.

Appellant told the probation officer in an interview on September 16, 2005, that his drug problem had started when he began drinking beer and vodka at the age of 11. Since then he had tried marijuana, cocaine, heroin, PCP (phencyclidine), LSD (lysergic acid diethylamide), and methamphetamine. He was presently using three grams of methamphetamine a day. He had never been incarcerated where there was any kind of drug treatment program other than NA and AA meetings and he would be willing to serve extra custody time if he could go through CRC. The probation officer concluded that appellant appeared to be truthful about his drug-addicted lifestyle and desire for treatment. His priors made him absolutely ineligible for a grant of Prop. 36 (Substance Abuse and Crime Prevention Act of 2000 [Pen. Code, 1210]), and a state prison sentence was clearly warranted, but the probation officer would not be opposed to the defendant being evaluated for CRC to give him an opportunity for drug treatment.

At the sentencing hearing on October 19, 2005, presided over by a different judge and with a different deputy representing the district attorneys office, defense counsel requested either a Proposition 36 disposition or a CRC evaluation referral for his client. The district attorney opposed both requests. If he thinks this is such an injustice, we would be more than happy to let him withdraw his plea and start this whole case over. As it was, the plea has been done, and were willing to see him go to prison for 44 months, but hes not eligible for Prop 36. Further, Based on the fact that he was, under the facts of this case, preparing to cook methamphetamine, hes, in our opinion, not suitable for CRC.

Appellant did not move to withdraw his plea and did not renew his argument regarding Proposition 36. However, in answer to the statement about CRC, defense counsel insisted that under the doctrine of separation of powers as expressed in People v.Navarro (1972) 7 Cal.3d 248 (Navarro), the court retained discretion to make a CRC referral despite the negotiated plea and the district attorneys opposition. Otherwise, counsel asserted, [E]very plea bargain that I go to, they could say to me, Well, Mr. Segal, my offer to you was 44 months, but if you refer your client to CRC, my offer to you is 70 months, or my offer to you is nothing, whatever they . . . want to say. Counsel also cited People v. McGinnis (2001) 87 Cal.App.4th 592 (McGinnis), for the proposition that referral to CRC is mandatory absent a finding that a drug-addicted defendant has engaged in an ongoing pattern of criminality.^[3]

Explaining that appellants prison record and the prior strike made him ineligible for a Proposition 36 disposition, the court denied that request. Also, because he had entered a negotiated plea for a prison term in exchange for the district attorneys withdrawing some of the charges, the court believed it could not refer appellant to CRC: I understand that theres a separation of powers issue, and Im going to exercise my authority not to consider CRC. I believe that this is a negotiated disposition with the People . . . because I think a commitment to CRC fundamentally changes the outcome of the case, in which case we could never have a negotiated disposition, because in virtually every single case the defense attorney could come back and ask for a CRC commitment, in which case Id have to refer it out, as you know, for a doctors report, and have to make a determination as to whether or not they were an addict and a danger to themselves. I think that adds a lot to the process, and I dont think that that was considered by either party initially. And when theres a meeting of the minds, which includes the defendant, when he pleads guilty, I think both sides deserve the benefit of the bargain. And I think a commitment to CRC would change that. [] And so Im going to exercise my discretion in the sense of not exercising it. . . . [] . . . [] And if [McGinnis] stands for the proposition that I must consider CRC, then I have considered that. I dont think its fair to either party to change the situation to change the negotiating between the two parties, so Im not going to do that. Had appellant been convicted after a jury trial, rather than as the result of a negotiated plea where he received a sentence for a lesser amount of time than that to which he was exposed, the court said, it would have considered a CRC commitment: And, in fact, I think I would probably have to, if you made that request. And I would refer it out for a doctors report, because the People dont have anything to do with it at that point.

The court sentenced appellant to state prison for 44 months: the low term of one year four months for the methamphetamine possession offense, doubled because of the strike, plus one consecutive year for the prison prior. For the violation of probation in the 2003 case it imposed a concurrent term of one year four months and, on motion of the district attorney, dismissed the drug paraphernalia charge and three prior felony conviction allegations.

DISCUSSION

Appellant argues that public policy and sentencing statutes require the court to exercise its discretion to permit drug rehabilitation treatment in lieu of confinement in prison for addicted defendants; that the court retains exclusive authority to consider CRC commitment despite negotiated plea agreements; and that the matter must be remanded for further proceedings because the court here mistakenly believed this plea agreement precluded its considering CRC referral. The People reply, in essence, that the plea bargain trumps the statute; that the agreement here contained no term permitting CRC referral; that an addicted defendant who wants a CRC referral must make that request at the time the bargain is negotiated in order to preserve the possibility; and that the trial courts only sentencing choices were to impose a prison sentence or allow appellant to withdraw his plea.

A. Standard of Review

We review CRC referral and commitment decisions for abuse of discretion. (People v. Masters (2002) 96 Cal.App.4th 700, 703-704; McGinnis, supra, 87 Cal.App.4th at p. 595.) A trial courts preliminary determination under section 3051 of a defendants fitness for rehabilitative treatment 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. Because this is inherently a qualitative judgment on the available information, the statute invests the court with, a broad discretion which will not be disturbed on appeal in the absence of abuse. (People v. Cruz (1990) 217 Cal.App.3d 413, 421 (Cruz), quoting People v. Zapata (1963) 220 Cal.App.2d 903, 913.)

Discretion under the statute is to be exercised to implement, not frustrate, the legislative policy which favors inquiry into the addictive status of all criminal defendants whose record indicates the presence of an addiction problem. (People v. Navarro, supra, 7 Cal.3d at p. 262, citing People v. Ortiz (1964) 61 Cal.2d 249, 254-255, italics original in Ortiz; 3000.) Where the trial court has erroneously refused to exercise the discretion conferred by section 6451 [now 3051] because of a misapprehension as to the defendants eligibility for the program, the case will be remanded to permit the exercise of such discretion. [Citations.] (People v. Jolke (1966) 242 Cal.App.2d 132, 143.)

B. CRC Referral and Public Policy

Section 3051 provides, in pertinent part: Upon conviction of a defendant for a felony . . . and upon imposition of sentence, if it appears to the judge that the defendant may be addicted . . . to narcotics the judge shallsuspend 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. ( 3051, italics added.) The California Supreme Court has interpreted the statute as evidence of a strong legislative policy favoring commitment and treatment of narcotics addicts as well as addict-peddlers who spread addiction in order to support their own habits. (Navarro, supra,7 Cal.3d at pp. 261 & fn. 10, 262; see also 3000.)

Exercise of discretion under section 3051 involves two steps: First, the court must determine if it appears . . . that 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. (People v. Granado (1994) 22 Cal.App.4th 194, 200.) A court must commit an addicted and otherwise not ineligible defendant even if he does not wish to be committed or treated. (People v. Lopez (1978) 81 Cal.App.3d 103, 111; People v. Leonard (1972) 25 Cal.App.3d 1131, 1136.) If a sentencing court chooses not to commit an otherwise eligible defendant to CRC, it must state, on the record, the primary factor in its decision. (Rule 4.406(b)(9).)

Excessive criminality is the only factor properly considered by a trial court in determining whether to institute commitment proceedings. ( 3051; McGinnis, supra, 87 Cal.App.4th at pp. 596-597; Cruz, supra, 217 Cal.App.3d at p. 420, citing People v. Madden (1979) 98 Cal.App.3d 249, 261-262 (Madden); see also People v. Granado, supra, 22 Cal.App.4th at p. 200.) In evaluating whether a defendants criminality is excessive, the court may properly consider the defendants record, the probation report, prior performance on probation or parole, and the nature and circumstances of the current offense, including the quantity of drugs possessed or sold and the apparent extent of a defendants illegal enterprise. (People v. Masters, supra, 96 Cal.App.4th at p. 706; McGinnis, supra, at p. 596; Cruz, supra, at p. 420.) Participation in drug trafficking not found to constitute excessive criminality may not form the sole basis for declining to refer a defendant for possible commitment to CRC. (Madden, supra, at pp. 261-262.)

Section 3052 prohibits application of section 3051 to certain categories of defendants: those convicted of statutorily specified crimes, those whose sentences are enhanced under certain subdivisions of the Penal Code, and those whose aggregate sentences exceed six years in state prison. ( 3052, subd. (a)(1-2).) Section 3053 provides that if at any time following receipt of a referred defendant, the Director of Corrections and Rehabilitation concludes that he is not a fit subject for treatment in CRC, he must be returned to the sentencing court for further criminal proceedings. ( 3053.)

In sum, under the relevant statutes and cases, absent a finding of a pattern of excessive criminality or a categorical exclusion under section 3052, CRC referral is mandatory for addicted defendants who meet the statutory criteria. If the court finds no such pattern, it must refer the defendant for CRC evaluation. ( 3053.) On the surface at least, appellant appears to be in the eligible group.

First, he was a convicted felon. The statute does not specify how a defendant must be convicted by plea or following trial. Indeed, since by far the majority of felony convictions are the result of plea bargaining, to assume that all felons so convicted fall outside the purview of section 3051 would be to eviscerate the statute. (See, for a relevant parallel, In re Sutherland (1972) 6 Cal.3d 666, 671 [If constitutional rights do not apply to defendants whose guilty pleas result from negotiated bargains, due process rules would be drastically circumscribed: There is no assurance that a defendant who pleads guilty after a plea bargain is more aware of the specific rights he renounces by virtue of that plea than one who pleads guilty in the absence of a bargain. While the bargaining defendant derives some benefit from the entry of his plea, his need to be informed of the rights he is surrendering is no less crucial than that of the defendant whose plea has not been reached via a bargain.].)

Second, the sentencing court believed that appellant was addicted to narcotics. The probation report outlined the history of his drug problems in detail. It was the report that first suggested that appellant might benefit from CRC referral. If his conviction had resulted from a jury trial rather than a plea agreement, the court stated it thought it would have been obligated to refer him for a medical evaluation. We note here that we do not see that this conclusion follows. There is nothing about a felony conviction resulting from a jury trial as opposed to a felony conviction following a guilty plea that would require CRC referral in the former situation any more than it would preclude referral in the latter. In both cases, the sentencing court must review the addicted defendants record to determine whether it reveals a pattern of criminality such that he is unfit for commitment. Only if it determines that an eligible defendant is not unfit must the court refer him for CRC evaluation. ( 3051)

Despite its belief that appellant was addicted to narcotics, however, the court did not evaluate his criminality. As required under rule 4.406(b)(9), it did state on the record its reason for refusing to consider CRC, but the reason did not comport with the statutory requirement. The court did not mention appellants record, the probation report recommendations, the nature and circumstances of the current offense, the quantity of drugs possessed or sold, or the extent of appellants illegal enterprise. (Masters, supra, 96 Cal.App.4th at p. 706; McGinnis, supra, 87 Cal.App.4th at pp. 595-596; Cruz, supra,217 Cal.App.3d at p. 420.) In the district attorneys opinion appellant was unsuitable for CRC because he was preparing to cook methamphetamine, but this is not sufficient. It is the judges opinion regarding a defendants criminality, not the district attorneys opinion regarding a defendants criminality, which counts under section 3051. (Navarro, supra, 7 Cal.3d at p. 263.) In any case, the manufacture of drugs, by itself, does not justify a refusal to refer an addicted defendant for CRC evaluation. (Madden, supra, 98 Cal.App.3d at pp. 261-262.)

Finally, with an aggregate sentence of considerably less than six years, however reached, appellant did not fit into any of the exclusionary categories of section 3052.

C. Plea Bargaining

Nonetheless, the People insist that under the contract principles which govern plea agreements the court here had only two choices: to send appellant to prison or to allow him to withdraw his plea. Not so.

Plea bargaining is essential to the fair and expeditious administration of justice. (People v. West (1970) 3 Cal.3d 595, 604-605.) A plea bargain is a contract between the prosecutor and the defendant to which the court agrees to be bound. (People v. Ames (1989) 213 Cal.App.3d 1214, 1217, citing People v. Shepeard (1985) 169 Cal.App.3d 580, 586.) If for any reason the court cannot effectuate the terms of a plea bargain, it must permit the defendant to withdraw [a] guilty plea, but [t]he plea bargain must comply with the statutory mandated sentence and the trial court has no discretion to make its own ad hoc adjustment to fit what it perceives as equity and justice. [Citation.] This is so because the Legislature has the sole authority to determine the appropriate punishment for criminal behavior. (People v. Jackson (1981)121 Cal.App.3d 862, 869, citing People v. Pinon (1973) 35 Cal.App.3d 120, 125 and In re Chamberlain (1971) 78 Cal.App.3d 712, 718.)

As a general rule, a plea bargain approved by the court is enforceable under contract principles. [Citations.] When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. (People v. Renfro (2004) 125 Cal.App.4th 223, 230, citing Santobello v. New York(1971) 404 U.S. 257, 260-261 and People v. Walker (1991) 54 Cal.3d 1013, 1024; see also People v. Shelton (2006) 37 Cal.4th 759, 767.)

Like all contracts, however, plea agreements are made against the background of existing law: As a general rule of construction, the parties are presumed to know and to have had in mind all applicable laws extant when an agreement is made. These existing laws are considered part of the contract just as if they were expressly referred to and incorporated. (Miracle Auto Center v. Superior Court (1998) 68 Cal.App.4th 818, 821.) Upon the entry of a plea of guilty, both the people and defendant have such rights and disabilities as are granted or imposed by the law, except as they are limited by the bargain. (People v. Haney (1989) 207 Cal.App.3d 1034, 1038.) Moreover, The prosecution and criminal court . . . do not have unfettered discretion in determining the subject matter of a plea bargain. The court must exercise its sentencing authority in accordance with the Penal Code, public policy, and decisional law. [Citation.] (People v. Renfro, supra,125 Cal.App.4th at p. 230.)

The Legislature added section 3051 to the Welfare and Institutions Code in 1965; it has been part of existing law for over 40 years. (Stats. 1965, Ch 1226, 2; People v. Reynoso (1966) 64 Cal.2d 432, 435.) The statute has long been enforced by California courts as the Legislatures expression of public policy regarding the punishment and treatment of criminals who are addicted to narcotics. (People v. Planavsky (1995) 40 Cal.App.4th 1300, 1305-1306, and cases cited therein.) Accordingly, the parties here must be presumed to have been aware of the law and had it in mind when they made their agreement and the Peoples claim that the agreement did not include a term providing for the sentencing court to consider CRC commitment is incorrect. Absent a limiting provision, the agreement necessarily included a term (section 3051) providing for CRC referral. (Miracle Auto Center v. Superior Court, supra, 68 Cal.App.4th at p. 821; People v. Haney, supra,207 Cal.App.3d at p. 1038.)

If this were a case where the court could not have legally effectuated the bargain, we would agree with the Peoples argument that the proper course was to allow appellant to withdraw his plea. For instance, if appellant had received a prison sentence for less than the statutory minimum, or one which the prosecutor had exceeded his authority in offering, withdrawal would have been the appropriate remedy. In People v. Jackson, supra, 121 Cal.App.3d at pp. 868-869, the defendant pled guilty in exchange for a sentence of 11 years. The trial court was later informed that the minimum sentence that could be imposed by law was 15 years to life. Thereupon it gave the defendant a choice to either accept the 15-year-to-life sentence or to withdraw his plea. The appellate court found that the trial court acted properly because the original sentence was illegal and not authorized by statute and it could not legally comply with the bargain. (Ibid.)

In this case, as the court here correctly determined, was the situation regarding Proposition 36 eligibility. With a strike on his record and a prison term within the last five years, appellant was not eligible for probation or, consequently, for a Proposition 36 disposition. (Pen. Code 1210.1, 667.5, subd. (c), & 1192.7, subd. (c).) Had the prosecutor bargained for such a disposition, he would have exceeded his authority by offering less than the statutory minimum and this would have been an illegal sentence the court could not have effectuated. (People v. Jackson, supra, 121 Cal.App.3d at p. 868) As the district attorney indicated, the thing to do in such a situation would have been to allow appellant to withdraw his plea. (Ibid.)

The case regarding CRC was different. With section 3051 by default a term of the agreement, as we have explained, there was nothing illegal about the plea bargain such that it could not have been enforced. Moreover, there was no evidence that either the court presiding at the settlement conference or the sentencing court would have disapproved the bargain had they understood that the possibility of CRC referral was one of its terms. Accordingly, forcing appellant to either withdraw his plea or go to prison were not the courts exclusive choices. It could have reviewed his record for evidence of criminality and, if not inappropriate, could have referred him for a CRC evaluation.

D. Waiver or Forfeiture of CRC Referral

The People also argue that if appellant wanted the court to consider CRC he should have raised that issue at the time he entered into the plea agreement and that failure to do so forfeited the possibility of CRC referral.

We may assume, without deciding, that defendants who would otherwise be ineligible for CRC referral by virtue of the prohibitions of section 3052 may waive referral as part of a plea bargain that releases them from its exclusionary provisions. We reach this conclusion partly by considering, together, the 1980 amendments to sections 3051 and 3052. Section 3051 was amended that year by deletion of a sentence which had previously conferred upon trial courts discretion to order CRC commitment in the interest of justice for defendants who would otherwise be ineligible under section 3052.^[4] (Stats. 1980, Ch. 822, 1; People v. Krauss (1984) 158 Cal.App.3d 274, 279.) At the same time, section 3052 was amended to exclude defendants whose aggregate sentences exceeded six years from eligibility for CRC referral under section 3051. (Stats. 1980, Ch 822, 2.) The 1980 amendments were clearly intended to narrow eligibility under the two provisions, and we can see no problem with a prosecutor requiring a defendant to waive an opportunity he or she would not have had anyway absent the plea bargain. Appellant was subject to a sentence of seven years eight months. Had he and the district attorney so agreed, appellant could have waived the possibility of CRC referral as part of a bargain that gave him a sentence of less than half that.

The major problem is that neither side presented any direct evidence regarding the substance of the plea negotiations as to CRC referral and the indirect evidence in the record is contradictory. At the settlement conference defense counsel said he expected the probation report to address the classification of [appellants] housing, which well may have been a veiled reference to CRC, but by the time of sentencing the identity of both the court and the deputy district attorney had changed and the parties had very different views on the matter. The sentencing court thought that neither party had considered CRC at the time of the original negotiations, but it was not the presiding court at that time and it took no evidence on the terms of the agreement. The deputy representing the district attorneys office at sentencing, also not present at the plea negotiations, apparently believed the negotiations had precluded referral and unless he was being disingenuous, defense counsel must have requested CRC for his client because he thought the possibility was still extant.

There is no express waiver in the record. Nor, as we have explained, can we find waiver implied merely from the fact that appellant pled guilty and agreed to a prison sentence. All felons are subject to prison sentences and most of them have become felons by way of a plea bargain. (People v. West (1970) 3 Cal.3d 595, 604.)

To assume that all addicted felons who negotiate plea bargains for reduced sentences have impliedly waived the statutory right to CRC referral would drastically circumscribe the policy of the Legislature regarding their treatment and punishment.

We do not disagree with the sentencing courts statement that CRC referral changes the result of a plea bargain, at least insofar as referral creates the possibility of custody in a treatment facility instead of custody in state prison. But that is exactly the change the Legislature appears to have intended for convicted felons who are addicted to narcotics and whose aggregate sentences are less than six years. ( 3000, 3051 & 3052.) The State of California has fashioned a policy to treat and rehabilitate a certain class of addicted felons. We fail to see how implementing the legislative policy deprives the People of a legitimate benefit of their bargain.

E. The Effect of Armendariz

Finally, the People add that this courts decision in People v. Armendariz (1993) 16 Cal.App.4th 906 (Armendariz) means that the plea bargain nullifies the statutory requirements of section 3051. We do not agree.

The defendant in Armendariz, a minor at the time he committed his crime, shot an ATM customer in the chest and eventually pled guilty to robbery, assault, and attempted murder. (Armendariz, supra, 16 Cal.App.4th at pp. 908-909.) As per the terms of his plea agreement, he was sentenced to 13 years in state prison. (Id. at p. 908.) On appeal, he contended that the trial court erred in failing to follow the probation departments recommendation that he be sentenced to the California Youth Authority (CYA or YA) facility, rather than state prison, as provided for in section 707.2. (Id. at p. 909.)

In upholding the trial courts decision to sentence the defendant to state prison, this court noted first that the legislative purpose behind section 702.2, as explained by the California Supreme Court in People v. Jones (1988) 46 Cal.3d 585 was, to broaden the courts discretion to impose a prison sentence despite a positive YA recommendation. (Armendariz, supra, 16 Cal.App.4th at p. 909, citing People v. Jones, at p. 601.) In addition, sentencing the defendant in Armendariz to state prison under the terms of the plea bargain was in accord with three of the five section 707.2 sentencing criteria: the interests of justice, the need to protect society, and the nature and seriousness of the offense. (Armendariz, at p. 911 & fn 5.) The decisive factor, however,was that because CYA commitment ends at age 25, and could end much sooner, a sentence to CYA would preclude imposition of the agreed-upon term of 12 or 13 years. (Id. at p. 910.)

This case is not like Armendariz. The statutes at issue are distinct. The legislative purposes, discretion of the court and of the parties, sentencing criteria, and the effect on the ultimate length of the sentence are all different. Unlike section 707.2, the purpose of section 3051 is not to broaden a trial courts discretion to send a defendant to prison despite an alternate recommendation. Its purpose is to mandate commitment of eligible felons addicted to narcotics to an alternate facility CRC despite the fact that they have been sentenced to prison. ( 3000 & 3051.)

Moreover, unlike the case of the Armendariz defendant, the reasoning of the court here was not in accord with the relevant sentencing criteria. Section 707.2 lists three primary considerations a court is to use in deciding whether to send a minor defendant to CYA or to prison: the interests of justice, the need to protect society, and the nature and seriousness of the offense. Sending the Armendariz defendant to prison instead of to CYA reflected the application of these criteria. (Armendariz, supra, 16 Cal.App.4th at p. 911, fn. 5.)

Section 3051, by contrast, makes a pattern of criminality the only reason for a court not to refer an eligible addicted defendant to CRC. (McGinnis, supra, 87 Cal.App.4th at p. 597.) The statute confers no authority not to consider CRC and no discretion for the court to exercise . . . discretion in the sense of not exercising it. And McGinnis stands not merely for the proposition that a court must consider CRC. McGinnis stands for the proposition that a court that believes an eligible felon is addicted to narcotics must review his record to determine whether his primary problem is drug abuse or a criminal orientation as reflected in a pattern of criminality such that he is unfit for commitment. (Id. at p. 597.) If appellant did not lawfully waive the possibility of CRC referral as part of his plea bargain, the court here needs to make this determination.

F. The Remedy

In a case where no evidence regarding an unresolved question was presented by either side, an appellate court may . . . remand the cause to the trial court for such further proceeding as may be just under the circumstances. [Citations.] (People v. Moore (2006) 39 Cal.4th 168, 174, citing 1260 and People v. Minor (1980) 104 Cal.App.3d 194, 199.) In such cases, the trial court is to take evidence, resolve the pending question, and take further proceedings giving effect to the determination thus made. [Citations.] (People v. Moore, at p. 177.)

Because we cannot tell from the record whether the possibility of a CRC referral was addressed during plea negotiations, we must remand the matter to the sentencing court to determine the actual terms of the bargain. This may best be done by receiving evidence from the individuals representing the district attorneys office and the court at the October 19, 2005, settlement conference. If the sentencing court finds that the possibility of CRC referral was in fact waived by appellant, his prison sentence will be unaffected. If referral was not waived, the court is instructed to exercise its discretion under section 3051 and examine appellants criminal record. If it finds that the record demonstrates a pattern of criminality such that he is not a fit subject for CRC commitment, appellants sentence will also be unaffected. If, however, the court does not so find, it should refer appellant for a CRC medical evaluation pursuant to the provisions of section 3051.^[5]

DISPOSITION

The matter is remanded for the trial court to hold further proceedings as directed in this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHLI

Acting P. J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated. Rule references will be to the California Rules of Court.

^[2] The earlier case stemmed from an August 1999 drug arrest which was resolved in a sweetheart deal plea bargain on February 19, 2002. Appellant pled guilty to felony impersonation (Pen. Code, 529.3), in exchange for the dismissal of charges of using and being under the influence of a controlled substance (Health & Saf. Code,  11377, subd. (a)); methamphetamine possession (Health. & Saf. Code, 11550, subd. (a)); display of a deadly weapon other than a firearm (Pen. Code, 417, subd. (a)(1)); and petty theft. (Pen. Code, 490.5.) In addition, allegations of two prior convictions (Pen. Code,  667.5, subd. (b)), were dismissed as part of the bargain. The 2002 case number is PEF003218; the current case number is SWF012227.

^[3] At the end of argument, in the presence of his client, defense counsel added the following gratuitous remark, which we note as highly inappropriate: [I]f we continue [to sentence drug offenders like appellant to prison], Your Honor, what happened in Attica . . . is going to be minor league compared to whats going to happen.

^[4] Eight years earlier, as we have discussed, the California Supreme Courthad already eliminated as a violation of the constitutional doctrine of the separation of powers the requirement that the district attorney approve a courts decision to refer a defendant to CRC despite ineligibility under section 3052. (People v. Navarro, supra, 7 Cal.3d at p. 259.)

^[5] On remand, events occurring during the time appellant has been in prison pending resolution of this appeal will be proper for consideration in determining whether he has demonstrated a pattern of criminality such that he is an unfit subject for CRC commitment. (People v. Lopez (1978) 81 Cal.App.3d 103, 111-112.)