Planavsky

*1302 Opinion

I. Introduction

Back in the early Sixties the Legislature enacted section 3051 of the Welfare and Institutions Code. Under the statute, “if it appears” to a sentencing judge that the defendant is a narcotics addict, or in danger of becoming one, the judge must stop everything and hold a hearing on the possibility of civil commitment to the California Rehabilitation Center (CRC).

What happens, however, when a possibly addicted criminal defendant makes no request for civil commitment and there is no record made of any consideration of the idea by the trial judge? Must the conviction be reversed because it was error for the trial judge not to have raised the issue on his or her own? The currently predominant solution to that question is based on a legal fiction. The fiction is that the sentencing judge is presumed to have considered civil commitment even if the record is totally devoid of any indication to that effect.

We agree with that result, but do not resort to a fiction to reach it. We follow the more “practical and straightforward” approach toward waiver recently enunciated by the California Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 353 [ 36…

My reading of the record convinces me the superior court has been well aware of Planavsky’s drug abuse problem since *1316 at least April 7, 1992, when he pleaded guilty to one count of residential burglary. The Tahl form (In re Tahl (1969) 1 Cal.3d 122 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ]) included defendant’s initials in the box indicating he would be placed on probation, but a violation could result in the imposition of a maximum five-year term. Although several conditions of probation required his cooperation in drug treatment programs, the Tahl form box advising that California Rehabilitation Center (CRC) proceedings might be instituted was X’d out.

Planavsky was found to be in violation of his probation a mere seven months later, on November 12, 1992. Probation was revoked, a four-year prison sentence was imposed, execution was suspended, and probation was reinstated. A new condition of this probation required Planavsky to enroll in a residential drug treatment program, and “the balance of any Orange County [j]ail sentence [could] be served in that program.”

When defendant violated probation again on March 25, 1994, more than a year after the prison sentence had been…

Back in the early Sixties the Legislature enacted section 3051 of the Welfare and Institutions Code. Under the statute, "if it appears" to a sentencing judge that the defendant is a narcotics addict, or in danger of becoming one, the judge must stop everything and hold a hearing on the possibility of civil commitment to the California Rehabilitation Center (CRC).

What happens, however, when a possibly addicted criminal defendant makes no request for civil commitment and there is no record made of any consideration of the idea by the trial judge? Must the conviction be reversed because it was error for the trial judge not to have raised the issue on his or her own? The currently predominant solution to that question is based on a legal fiction. The fiction is that the sentencing judge is presumed to have considered civil commitment even if the record is totally devoid of any indication to that effect.

We agree with that result, but do not resort to a fiction to reach it. We follow the more "practical and straightforward" approach toward waiver recently enunciated by the California Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 353 [ 36 Cal. Rptr.2d…