P. v. Stiefel















Filed 7/13/12 P. v. Stiefel CA1/3

>

>

>

>

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ANDREW DAVID STIEFEL, Defendant and Appellant.

A134243 (Sonoma County Super. Ct. No. SCR-458126)

Defendant
Andrew David Stiefel appeals the execution of a suspended sentence following
his exclusion from the California
Rehabilitation Center (CRC).
Defendant’s appellate counsel has filed a brief pursuant to >People v. Wende (1979) 25 Cal.3d 436,
and requests that we conduct an independent
review of the record. Defendant was
informed of his right to file a supplemental
brief and did not file such a brief.
(See People v. Kelly (2006) 40
Cal.4th 106, 124.) We have conducted the
review requested by appellate counsel and, finding no arguable issues, affirm
the judgment.

Factual and
Procedural Background

On
December 7, 2007,
defendant appeared for sentencing on guilty-plea convictions in three separate
felony cases. In case number SCR-458126,
the court imposed the mid-term of three years on count one for href="http://www.mcmillanlaw.com/">unlawful taking of a vehicle in
violation of Vehicle Code, section 10851, subdivision (a). The court imposed the mid-term of three years
on count two, stayed pursuant to Penal Code, section 654,href="#_ftn1" name="_ftnref1" title="">[1]
for receiving stolen property in violation of section 496d, subdivision
(a). Also, the court imposed a
consecutive term of eight months (one-third the mid-term) on count three for
possession of narcotics in violation of Health and Safety Code, section 11377,
subdivision (a). In case number
SCR-522720, the court imposed a consecutive term of eight months (one-third the
mid-term) for making criminal threats in violation of section 422. Last, in case number SCR-503576, the court
imposed a further consecutive term of eight months (one-third the mid-term) for
possessing narcotics in violation of Health and Safety Code, section 11377,
subdivision (a). The aggregate term
imposed by the court for the convictions in all three cases was five
years. Furthermore, defendant stipulated
to the allegation that he is addicted to, or is in danger of addiction to,
narcotic drugs, under Welfare and Institutions Code, section 3051 (section
3051). After finding defendant is in
danger of addiction under section 3051, the court suspended execution of the
sentence imposed and committed defendant to the CRC for a period of five years.


On
October 24, 2011, href="http://www.fearnotlaw.com/">criminal proceedings were reinstated and
the matter referred to probation, following defendant’s exclusion from CRC on
safety grounds. At the sentencing
hearing held on November 22,
2011, defendant asked the court to place him on probation and allow
him to complete the Redwood Gospel Treatment Program. The court vacated the commitment order to
CRC, denied probation and committed defendant to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation
for the previously suspended term of five years. Per the probation report, the court initially
awarded total custody credits of 1095 days in SCR 458216, 240 days in SCR
503576 and five days in SCR 522720.
Defense counsel pointed out that the custody calculation in the
probation report may not have accounted for defendant’s time in custody between
January and July 2011. The court
ordered the probation officer to investigate the matter and report back to the
court and the parties.

At
a subsequent credits hearing held on January 13,
2012, the probation officer advised the court that the calculation
of custody credits in the probation report was inaccurate. The probation officer stated custody credits
should reflect 1,335 days in SCR-458126, 219 days in SCR-522720 and 240 days in
SCR-503576. The prosecutor and defense
counsel concurred in the probation officer’s revised credit calculation. The court awarded custody credits as
recommended by the probation officer and defense counsel withdrew a habeas
petition she had filed in an attempt to expedite resolution of the custody
credit issue. The custody credits
awarded by the court are accurately reflected in revised abstract of judgment
filed on January 13, 2012.

Discussion

A
CRC commitment is a unique interim disposition of a criminal case. (See People
v. Barnett (1995) 35 Cal.App.4th 1, 3 (Barnett).) Although it is a judgment for purposes of
appeal (§ 1237), it is not a final judgment, (Barnett, supra, 35 Cal.App.4th at p. 4). Whether the defendant successfully completes
the program (Welf. & Inst. Code, § 3200), is excluded from the program
as unfit (Welf. & Inst. Code, § 3053, subd. (a)), or serves all the
available confinement time (Welf. & Inst. Code, § 3201, subd. (c)), he
or she must be returned to the trial court by CRC for resentencing. (See Barnett,
supra, 35 Cal.App.4th at pp. 3-4.)

Furthermore,
“an involuntary termination [from CRC is] a discharge from commitment which
then empowers the court to enter a sentence appropriate to the
circumstances.” (People v. Nubla (1999) 74 Cal.App.4th 719, 726 (>Nubla).)
“[T]he sentencing court retains jurisdiction over the defendant during
the period when the defendant is committed to CRC.” (Id.
at p. 728.) After an involuntary
termination from CRC, “the defendant [is to] be returned to the court in which
the case originated ‘for such further proceedings on the criminal charges as
that court may deem warranted,’ and . . . the ‘court shall then
promptly set for hearing the matter of the sentencing of the defendant upon the
conviction which subsequently resulted in the original civil
commitment.’ ” (>Ibid.)

The
trial court has broad discretion under the statutes to modify the unexecuted
prison sentence, to deem it served, suspend further proceedings, even to
dismiss the case if not barred by other provisions of law. (Nubla,
supra, 74 Cal.App.4th. at pp. 725, 729.) “[T]here is no statutory or administrative
mandate that the previously imposed judgment be in full force and effect upon
the defendant’s rejection from CRC.” (>Id. at p. 728.) The only limitation is that a defendant may
not be sentenced to a greater term than originally imposed and suspended. (Id.
at pp. 726, 729.)

Here,
the court sentenced defendant to the aggregate five-year term originally
imposed and suspended. Moreover, the
record demonstrates that the trial court was fully aware of its sentencing
discretion when it imposed sentence.
(See People v. Brown (2007)
147 Cal.App.4th 1213, 1228 [“Defendants are entitled to ‘sentencing decisions
made in the exercise of the “informed discretion” of the sentencing court,’ and
a court that is unaware of its discretionary authority cannot exercise its
informed discretion. [Citation.]”].) In
this regard, the court received and carefully reviewed an updated probation
report, considered and rejected defendant’s request for a further probationary
sentence, and imposed the sentence recommended in the probation report “for the
reasons stated therein.” Those reasons
included defendant’s failure on two prior residential treatment programs, as
well as the fact defendant continued to reoffend by absconding from parole
supervision for approximately six months and incur[ing] “at least one other
violation of CRC parole.” On these
facts, we find the trial court did not abuse its discretion by denying probation
and executing the previously imposed sentence with credit for time served. (See People
v. Downey (2000) 82 Cal.App.4th 899, 909-910 [“ ‘A denial or grant of
probation generally rests within the broad discretion of the trial court and
will not be disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary or capricious manner.’ [Citation.] A court
abuses its discretion ‘whenever the court exceeds the bounds of reason, all of
the circumstances being considered.’ [Citation.]”].)

Neither
defendant nor his appellate counsel has identified any issue for our
review. Upon our own independent review
of the entire record, we agree none exists.
(People v. Wende, >supra, 25 Cal.3d 436.) Having ensured appellant has received adequate
and effective appellate review, we affirm the trial court’s judgment. (People
v. Kelly, supra, 40 Cal.4th at p. 124.)





Disposition

The
judgment is affirmed.





_________________________

Jenkins,
J.





We concur:





_________________________

McGuiness, P. J.





_________________________

Pollak, J.