People v. Murphy, H030175 (Cal. App. 5/25/2007)

• Decision Date: 25 May 2007
• Docket Number: H030175
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. TROY KIM MURPHY, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. TROY KIM MURPHY, Defendant and Appellant.

H030175

Court of Appeals of California, Sixth Appellate District

May 25, 2007

NOT TO BE PUBLISHED

Appeal from the Monterey County, Super.Ct.Nos. SS051452, SS052318, SM970648.

DUFFY, J.

Defendant, Troy Kim Murphy, a South Korean citizen,¹ is in poor mental health and is a long-time drug abuser with an accompanying history of criminal convictions. The trial court, sitting without a jury after defendant waived his right to jury trials, convicted defendant of various offenses in two of the three cases that form the basis of this appeal (SS051452 and SS052318). It revoked defendant's probation in the third case (SM970648), and sentenced him to six years in prison.²

On appeal, defendant asserts that the trial court abused its discretion in failing to have him evaluated for possible commitment to the California Rehabilitation Center, and that it relied on facts neither charged nor found true beyond a reasonable doubt to impose aggravated and consecutive prison terms, in violation of federal constitutional guaranties announced in Apprendi v. New Jersey (2000) 530 U.S. 466 and post-Apprendi United States Supreme Court cases.

We will affirm the judgment.

I. Eligibility for Commitment to California Rehabilitation Center

A. Procedural Background

During the proceedings³ in this case, the trial court commented: "One other thing that came to my mind, in looking at [defendant's] background and history, is the possibility . . . of perhaps a [California Rehabilitation Center] commitment. But we can take that up at the time of the actual sentencing."

At defendant's sentencing hearing, defense counsel noted that defendant had "failed at least three programs. And I don't know what—I mean, I don't know what more we could do with him. The only thing I could think of was [California Rehabilitation Center]. And I don't know whether the criminality would bar that or not." The trial court replied: "Well, quite frankly, based on the sentence I plan on imposing, he would—even if he was acceptable to [California Rehabilitation Center], he wouldn't be eligible. [¶] . . . [¶] . . . As I understand it, . . . there's a homeland security immigration hold on him as well. For a number of reasons I don't think he'd be eligible for a [California Rehabilitation Center] commitment."

Defense counsel replied: "I think that's probably true too. I don't know about the hold on that." But counsel maintained that defendant was "so ruled by drug abuse and drug addiction that he is barely a functioning human being. So I'm going to ask the Court to weigh heavily the . . . physical and mental condition he is in and fashion a sentence that's fair."

The trial court invited defendant to express his view, and he answered: "If you sentence me to prison, I want to go to [California Rehabilitation Center] if I'm eligible." The court replied, "for a number of reasons I don't think you are eligible for [California Rehabilitation Center] . . . . That's not—that won't be an option, unfortunately." The court sent defendant to prison for the prescribed term.

B. Discussion

On appeal, defendant claims that the trial court abused its discretion in not having him evaluated for possible placement at the California Rehabilitation Center. He asserts that the law required the court to articulate a proper basis for its decision, and that what he considers to be the court's summary denial of his request was improper.

Welfare and Institutions Code section 3051 provides, as relevant here:

"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 [i.e., the California Rehabilitation Center] 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."

We review for abuse of discretion a trial court's determination that evaluation for placement at the California Rehabilitation Center is or is not warranted. (People v. McGinnis (2001) 87 Cal.App.4th 592, 595.) The trial court is charged with assessing, on the basis of the information available to it, whether " `the defendant's main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality' " (id. at p. 597), a subjective inquiry that requires deference from the reviewing court (ibid.).

The trial court is not required to state facts, but is required to give reasons, when refusing to order an evaluation for commitment to the California Rehabilitation Center. (Cal. Rules of Court, rule 4.406(b)(9); People v. Granado (1994) 22 Cal.App.4th 194, 201-203.) Unfortunately, one of the reasons the trial court articulated was inapposite.

To reiterate, the court stated, "based on the sentence I plan on imposing, he would—even if he was acceptable to [California Rehabilitation Center], he wouldn't be eligible. [¶] . . . [¶] . . . As I understand it, . . . there's a homeland security immigration hold on him as well. For a number of reasons I don't think he'd be eligible for a [California Rehabilitation Center] commitment." In sum, the court appeared to rely on two factors: the length of the sentence it was going to impose on defendant, and its expectation that defendant would be deported after serving his sentence.

In fact, however, only a defendant who is sentenced to more than six years in state prison, once possible prison credits are taken into account, is ineligible for California Rehabilitation Center placement. (Welf. & Inst. Code, § 3052, subd. (a)(2).) The trial court erred in relying on that factor, because it did not exist. Defendant was sentenced to six years in prison for the crimes committed in the three cases filed against him.

The trial court's other stated reason for refusing a California Rehabilitation Center evaluation is, however, well taken, and suffices for us to reject defendant's claim. With regard to defendant's noncitizen and hence deportable status, he argues that under People v. Arciga (1986) 182 Cal.App.3d 991, only the Director of Corrections, and not the trial court, may consider his immigration and nationality status in deciding his suitability for treatment. But Arciga noted: "`The rehabilitation program contemplates an extended period of institutional and outpatient treatment. The law contemplates a seven-year commitment, and a minimum of six months spent as an inpatient, with the addict then being placed on outpatient status (Welf. & Inst. Code, §§ 3151, 3152, 3201), and pending deportation makes this program impossible.' " (Id. at p. 998.) The program's outpatient component remains in effect (Welf. & Inst. Code, §§ 3151, 3152, 3201), and it stands to reason that the trial court would be in as good a position as the Director of Corrections to determine defendant's likelihood of successfully completing treatment, given the possible later need to place defendant on outpatient status and the fact that the U.S. Immigration and Customs Enforcement service had placed on defendant a so-called immigration hold, meaning that defendant would be transferred to federal custody for deportation on completing his state prison term. An alien who is deportable because of conviction of an "aggravated felony" under federal law for immigration purposes (a condition that, as represented to the court below, applied to defendant at an early stage of the proceedings) is subject to apprehension and confinement by the U.S. Immigration and Customs Enforcement agency on leaving prison and is unlikely to be released to the community. (See 8 U.S.C. § 1226, subd. (c)(1)(C); Lopez v. Gonzales (2006) __ U.S. __, __ ; U.S. v. Amador-Leal (9th Cir. 2002) 276 F.3d 511, 516-517; In re Resendiz, supra, 25 Cal.4th at p. 255 (conc. & dis. opn. of Mosk, J.).)

We perceive that the trial court spoke in the disjunctive. Its twice-uttered statement that "a number of reasons" warranted not sending defendant for a California Rehabilitation Center evaluation makes this clear. The court did not invoke "a combination of reasons," "a number of reasons in combination," or similar words. Each reason, in the court's mind, justified not having a California Rehabilitation Center evaluation done. And defendant's liability to confinement and deportation on leaving state prison sufficed to permit the court to decide he was not fit for evaluation for possible placement at the California Rehabilitation Center. (See People v. Arciga, supra, 182 Cal.App.3d at p. 998.) The trial court could so determine without waiting for the Director of Corrections to make the same determination at a later stage. Thus, the court's error in calculating the length of defendant's prison term against his statutory eligibility for California Rehabilitation Center placement is of no significance.

Defendant argues that this case is distinguishable from People v. Arciga, supra, 182 Cal.App.3d 991, in that he is not an illegal, i.e., undocumented, alien. Whether that is true or not, we see no difference: as an alien with a qualifying criminal conviction, he is deportable on that ground whether or not he would be deportable on some other ground, such as being illegally present in the United States. He also argues that it is possible the immigration hold could be lifted or that he could be released on bail from U.S. Immigration and Customs Enforcement custody so as to participate in the California Rehabilitation Center...