P. v. Harris



















Filed 4/5/13 P. v. Harris CA2/3













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. MARTIN LAMONT HARRIS, Defendant and Appellant.

B240656 (Los Angeles County Super. Ct. No. NA084631)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,

Richard
R. Romero, Judge. Affirmed in part,
vacated in part, and remanded with directions.

Robert Booher, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.



_________________________

Appellant
Martin Lamont Harris appeals from the judgment entered following his plea of no
contest to bringing drugs into jail (Pen. Code, § 4573). The court sentenced appellant to prison for
three years. We affirm the judgment,
except we vacate appellant’s sentence and remand the matter with directions.>

>FACTUAL SUMMARY

The record reflects that on January 31, 2010,
appellant brought drugs into the Long
Beach jail.

>ISSUES

Appellant claims the trial court (1) erroneously failed to
conduct a Marsden hearing on January
9 and January 23, 2012, and (2) erroneously failed
to exercise informed discretion when sentencing him.

>DISCUSSION

1. >The Trial Court Did Not Err by Failing to
Conduct a Marsden Hearing on January 9 or 23, 2012.

a. Pertinent
Facts.

We
set forth the pertinent facts below and highlight those upon which we
particularly rely in our later analysis.
The felony complaint in the present case (superior court case No.
NA084631) (the present case) alleged as count 1 that on or about January 31,
2010, appellant brought drugs into jail, and alleged a count 2. On February 9,
2010,
pursuant to negotiations, appellant pled no contest to count 1, and the court
suspended imposition of sentence, placed him on formal probation for one year,
and dismissed

count 2. In
December 2011, the court scheduled a probation violation hearing in the present
case, and a preliminary hearing in a
new case (new case) for January 9, 2012.

On January 9, 2012, the court called both cases, indicated there had
been a discussion about a Farettahref="#_ftn1" name="_ftnref1" title="">[1] waiver, and asked
appellant’s counsel, Carolyn Disabatino, whether appellant was asking to
represent himself. Appellant and Disabatino each said yes. After the court advised appellant in detail
as to what would occur if the court that day granted appellant’s motion to
represent himself on both cases, appellant agreed to make his request later.

During
the ensuing preliminary hearing in the new case, evidence was presented
appellant provided false identification information to police (i.e., evidence
of a violation of Pen. Code, § 148.9, subd. (a)). Appellant was held to answer on the counts at
issue at the preliminary hearing in the new case and the court found appellant
in violation of probation in the present case based on the evidence appellant
had provided false identification information to police.

On January 23, 2012, the court suggested a possible disposition of both
cases but appellant denied he wanted the proposed disposition and indicated he
wanted a jury trial. Appellant later
stated he did not want Disabatino on his case.

The
following then occurred as part of appellant’s Faretta waiver: “[The
Court:] Have you done this before,
sir? Gone pro per? [¶] [Appellant]: Well, no. [¶]
The Court: So there is a procedure, a lot of questions I have to
ask you. I also have to find out whether you really want to go pro per or
if there is something that can be worked out between the two of you. If
there is something that can be worked out between the two of you, I need to ask
the prosecutor to leave, and we will see whether we can resolve that. In my opinion, it is better for you to try to
resolve things between you and your lawyer, but if you don’t want to do that,
we won’t do that. [¶]
[Appellant]: I don’t want her on my case.
[¶] The Court: That’s not
what I asked. [¶] [Appellant]: She was on my case before, and me and her had a conflict of interest. [¶]
The Court: That’s fine.”
(Italics added.) The following
later occurred: “The Court:> You want to represent yourself,
right? [¶] [Appellant]: Yes.” (Italics
added.)

Later, the following
occurred: “[Appellant]: I want a
jury trial. [¶] The Court: You’ll get one, sir.
[¶] Do you understand, sir, that
representing yourself -- [¶]
[Appellant]: I go co-counsel with a state-appointed attorney,
then. [¶] The Court: Listen. If you do not
follow the court’s instructions or misbehave in some fashion, your right to
represent yourself will be terminated and an attorney will represent you
whether you want the attorney or not.
[¶] [Appellant]: >I don’t want no attorney to represent me,
period.” (Sic.)

The following then occurred:
“[The Court:] If you don’t follow my
directions, if you talk after I tell you not to speak, if you misbehave, you
can’t represent yourself. [¶] Do you understand that? [¶]
[Appellant]: I can’t
represent myself? [¶] >That’s a Fifth Amendment and Sixth Amendment
violation. [¶] The
Court: Do you understand that your
right to represent yourself will end?
[¶] . . . [¶]
The Court: I’m not asking whether you agree. I’m asking
whether you understand. [¶] [Appellant]: Yes. I want a evidentiary hearing.” (Italics added.) The court later stated, “The court finds that under the law, Mr. Harris has made a knowing, understanding,
intelligent waiver of his right to assistance of counsel with knowledge of the
consequences.” The following later occurred: “The Court: . . . [¶] Do you
want to represent yourself on both cases, the Prop 36 for which you’re facing
sentencing -- [¶] [Appellant]:> Yes.
[¶] The Court: > -- as
well as the new case? [¶] [Appellant]: Yes.” (Italics added.) Appellant subsequently began representing
himself.

After
further proceedings concerning both cases, the court indicated appellant was ineligible
for Proposition 36 probation in the present case because he was also charged
with identity theft. Appellant indicated
Disabatino misled appellant and said he “was under 148.9 charge.” Appellant later stated, “I know she
completely continuously misled me. And,
see, there are some things, your Honor, that you probably don’t know,
either. She was my lawyer in . . . 2003,
and me and her had a complete conflict of interest. And I believe that all of this is act of
revenge against me as a person in this court, and she completely sabotaged my .
. . Prop 36 this time because me and her did never get along in 2003. I had to fire her, and me and her was in
complete high style conflict of interest.”
(Sic.)

The following then
occurred: “[Appellant:] When I seen her pick up my file to become my
lawyer, I’m thinking how is this possible, me and this woman ain’t never got
along? That was completely out of line,
your Honor, for her to even be my lawyer.
[¶] . . . I filed a
complaint against her in the State Bar in 2003, and I filed a complaint against
the judges in the Commission [on] Judicial Performance for the same thing. I’m thinking how is this woman getting my
file and come in here trying to represent me when I done filed all this stuff
against her? That was way out of
line. [¶] The Court:
But that’s all in the past now. I
notice you seem a little less tense, more relaxed now. [¶]
[Appellant]: Yes.” (Sic.) On February 21, 2012, in the present case,
the court revoked and terminated appellant’s probation and sentenced him to
prison for three years.

b. Analysis.

Appellant claims the trial
court erroneously failed to conduct a Marsdenhref="#_ftn2" name="_ftnref2" title="">[2] hearing
on January 9 and 23, 2012. We
disagree. “In People v. Marsden (1970) 2 Cal.3d 118, we held that a defendant
is deprived of his constitutional right to the effective assistance of counsel
when a trial court denies his motion to substitute one appointed counsel for
another without giving him
an opportunity to state the reasons for his request.” (People
v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1, italics added.)name="refpt_CA7"> “A trial judge
should not be obligated to take steps toward appointing >new counsel where defendant does not
even seek such relief.” (People
v. Gay (1990) 221 Cal.App.3d 1065, 1070, italics added.)

“The
court’s duty to conduct the [>Marsden] inquiry arises ‘only when the
defendant asserts directly or by
implication that his counsel’s performance has been so inadequate as to deny
him his constitutional right to effective
counsel.’ [Citations.]” (People
v. Lara (2001) 86 Cal.App.4th 139, 151, italics added.) “Requests under . . .
Marsden . . . >must be clear and unequivocal. [Citations.]”
(People v. Rivers (1993)
20 Cal.App.4th 1040, 1051, fn. 7, italics added.) In
order to make a Marsden motion, there
must be a “clear indication by
defendant that he wants a substitute attorney.” (People
v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8, italics added.) A defendant is entitled to relief if the
record clearly shows that the defendant’s appointed attorney is not providing
adequate representation or that the defendant and said attorney have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result. (People v. Jackson (2009) 45 Cal.4th 662, 682.)

We
have recited the pertinent facts, and they do not reflect that on January 9 or
23, 2012, appellant clearly and unequivocally asked for substitution of
counsel, clearly indicated he wanted a substitute attorney, or asserted
counsel’s performance was so inadequate as to deny appellant his right to
effective assistance of counsel.

Instead, the record, fairly
read, reflects appellant wanted to represent himself, not because Disabatino
was providing ineffective assistance of counsel in the present case or because
anything had occurred in the present case causing an irreconcilable conflict to
develop between appellant and Disabatino, but because appellant allegedly
lacked confidence in Disabatino based on her previous representation of
appellant in a completely different case in 2003. The fact that the court suggested it
might discuss with appellant and Disabatino in the prosecutor’s absence whether
appellant and Disabatino might work out between them any unspecified issues,
and the fact that appellant later suggested he wanted advisory counsel, did not
mandate a Marsden inquiry. The trial court did not err by failing to conduct a >Marsden hearing, because appellant never
made a Marsden motion. (Cf. People
v. Bradford (1997) 15 Cal.4th 1229, 1372-1373; People v. Clark (1992) 3 Cal.4th 41, 105; People v. Burton (1989) 48 Cal.3d 843, 855.)

2. >The Trial Court Erroneously Failed to
Exercise Informed Discretion as to Whether to Reinstate Appellant’s Proposition
36 Probation.

a. Pertinent
Facts.

As
indicated, in the present case (case No. NA084631), on February 9, 2010,
pursuant to negotiations, appellant pled no contest to bringing drugs into jail
(count 1) and the court (Judge Arthur Jean, Jr.) suspended imposition of
sentence and placed appellant on formal probation for one year pursuant to
Proposition 36, on the condition, inter alia, that he obey the law. The court also, pursuant to the negotiations,
dismissed count 2 in the present case.
That count alleged appellant possessed methamphetamine in violation of
Health and Safety Code section 11377, subdivision (a), a felony. In April 2010, the court called the case for
a progress report, appellant failed to appear, and the court terminated his
Proposition 36 probation (probation).

On October 29, 2010,
appellant appeared in court and admitted he violated probation based on his
previous failure to appear. The court
reinstated probation. In January 2011,
the court called the case for a progress report, appellant failed to appear,
and the court terminated probation. On December
6, 2011, appellant appeared in court and the court (Judge James Otto) continued
the case for a probation violation hearing, ultimately to December 20,
2011.

On
December 20, 2011, the court (Judge Judith Meyer) called the present case for a
probation violation hearing, revoked appellant’s probation, and ordered that
the present case trail the preliminary hearing in a new case of appellant (case
No. NA090771) (new case).

On January 9, 2011, Judge
Meyer called both cases. A police
officer’s testimony during the preliminary hearing in the new case provided
evidence that on December 3, 2011, appellant, as charged in the complaint in
that case, possessed methamphetamine in violation of Health and Safety Code
section 11377, subdivision (a), a felony (count 1) and committed identity theft
in violation of Penal Code section 530.5, subdivision (c)(1), a misdemeanor
(count 2). The officer also testified
appellant thrice provided a false name and birth date to the officer. Appellant was held to answer on both counts
in the new case and the court found appellant in violation of probation in the
present case based on the testimony appellant had provided false identification
information to the officer. Both cases
were continued to January 23, 2012.

On
January 23, 2012, the court (Judge Richard R. Romero) granted appellant’s
motion to represent himself in both cases.
Appellant pled not guilty to the charges, and denied the allegations, in
the new case. The court indicated
appellant would receive a copy of the information in the new case.

After the court and
appellant discussed the new case, the following occurred: “[Appellant]: The [provisions] of Prop 36, which the
prosecutor seem to be in violation of because this only my second violation on
Prop 36 and -- [¶] The Court: So you’re saying you’re entitled to Prop 36
on this case? [¶] [Appellant]:
Yes. I was -- [¶]
The Court: There is a problem,
count 2. Prop 36 says if there is a
charge like identity theft along with the Prop 36 case, you don’t get Prop
36. It’s a provision of law. It has to be all a Prop 36 to get Prop
36. If there is something in there like
assault, resisting arrest – often I see resisting arrest in there – you can’t
get Prop 36.” (Sic.) The court continued
the case to February 21, 2012.

On
February 21, 2012, the court (Judge Romero) called both cases. Appellant argued, inter alia, Proposition 36
called for reinstatement of his probation, and allowed the court to order him
to participate in a more restrictive drug program, as an alternative to
imprisonment.

The
court indicated Judge Meyer had found appellant in violation of probation in
the present case based on a non-drug-related reason, i.e., the fact he had
provided false identification information to police. The following later occurred: “[The Court:]
But, as you know, if you violated Prop 36 in a non-drug-related manner,
then Prop 36 can end, and you are subject to regular criminal sentencing.
That’s the theory why you’re here for criminal sentencing on the former Prop 36
case, because -- [¶] [Appellant:] I only had one Prop 36, and it
was a one-year probation sentence. [¶] The Court: If you
violate Prop 36 once in a non-drug-related way, Prop 36 ends and then you have
criminal sentencing. So the theory is that you violated your Prop 36 by
giving false information to a police officer, a criminal offense. So that
ends Prop 36 for you, and you are subject to regular criminal sentencing.
That’s the theory. If you want to address that, I’ll hear you.”

Appellant stated, “. . .
Your Honor, well, the theory of me being in violation of it wasn’t no violation
because you allowed to have a alias name.”
(Sic.) Appellant told the court he truthfully had
told police his name was Michael Harris and he had never provided false
information to the police. The court
stated, “My position is to defer to Judge Meyer since she held the evidentiary
hearing on this narrow issue.” After the
prosecutor agreed with the court, the court stated, “there is a basis for the
sentencing.” The court repeatedly asked
appellant if there was any reason why the court should not proceed with
“sentencing” or pronounce “sentence,” and appellant reiterated the court should
reinstate his Proposition 36 probation.

The
trial court recited the history of the proceedings in the present case
consistent with information reflected in minute orders, then asked the
prosecutor for his position concerning what “sentence” the court should
impose. The prosecutor asked the court
to sentence appellant to prison for three years. The court later told appellant, “We are on
the issue of what sentence I should impose.
So if you want to address that, I suggest you address that because the
D.A. has asked for three years.”
Appellant indicated, inter alia, he wanted a doctor to examine him
because of appellant’s drug problem so he could participate in a drug
program. The court replied,
“[Appellant], I am going to try to determine what your credits are, sir.” After calculating precommitment credit in the
present case, the court revoked and terminated probation in the present case
and sentenced appellant to prison for the upper term of three years. In light of that sentence, the prosecutor
moved, “pursuant to section 1382,” (sic)
to dismiss the new case and the court granted the motion.

b. Analysis.

Appellant claims the trial
court erroneously failed to exercise its informed discretion when sentencing
him. We agree.

(1) >The Trial Court Erroneously Concluded on
January 23, 2012, that Appellant Was Ineligible for Proposition 36 Probation.

“. . . ‘By its terms,
Proposition 36 requires the court to
grant probation with a drug treatment condition to any person convicted of a
nonviolent drug possession offense and prohibits incarceration as a condition
of probation.’ [Citation.] Under Proposition 36, persons convicted of a
nonviolent drug offense are entitled
to Proposition 36 probation under [Penal Code] section 1210.1, subdivision (a),
unless they meet one of the express
statutory disqualifications specified in subdivision (b).^{[href="#_ftn3" name="_ftnref3" title="">[3]]} (See People v. Esparza (2003)
107 Cal.App.4th 691, 699 [‘When a defendant is eligible for
Proposition 36 treatment, it is mandatory
unless he is disqualified by other
statutory factors . . . .’].)” (>People
v. Castagne (2008) 166
Cal.App.4th 727, 732 (Castagne), italics added.)

We
note at the outset that, as discussed below, on January 23, 2012, the trial
court (Judge Romero) erroneously concluded appellant was statutorily
disqualified from participating in Proposition 36 probation. On that date, after the court and appellant
discussed pretrial matters pertaining to the new case, appellant shifted the
topic, referring to Proposition 36 and, in particular, to his “second violation
on Prop 36.” Appellant, by the quoted
language, was clearly referring to the present case, which was the only case in
which he had suffered a second violation of Proposition 36 probation.

The court then asked if
appellant was saying he was entitled to Proposition 36 “on this case,” and
appellant said yes. The court’s
subsequent comments, fairly construed, indicate the court viewed “count 2” as a
“problem” because it charged identity theft, and if there was a “charge like
identity theft along with >the Prop 36 case” (italics added), that
is, along with the present case which was
a Proposition 36 case, “you don’t get Prop 36.” Phrased differently, the trial court was
indicating that although appellant otherwise might have been entitled to
Proposition 36 probation in the present case (case No. NA084631), count 2 charged
identity theft, and when a count charged a crime like identity theft, the
defendant was, as a matter of law, not entitled to such probation in the
present case, or at all.

The trial court cited no
authority for its position. However, the
only express statutory disqualification that the trial court might have been
referring to is that found in Penal Code section 1210.1, subdivision (b)(2)
(see fn. 3, ante). However, that subdivision was inapplicable
for two reasons. First, subdivision
(b)(2) expressly requires that the defendant be “convicted . . . of a misdemeanor not related to the use of
drugs.” (Italics added.) The charge of identity theft in violation of
Penal Code section 530.5, subdivision (c)(1) was a misdemeanor not related to
the use of drugs, but appellant was never convicted
of that charge. Indeed, on February
21, 2012, the court, on the prosecutor’s motion, dismissed the new case, which
included the identity theft charge.

Second, appellant was asking
the court to apply Proposition 36 in the present case, i.e., >case No. NA084631, in which appellant on
February 9, 2010, had pled no contest to bringing drugs into jail, a violation
of Penal Code section 4573 alleged as count 1 in a complaint filed under that
case number. Count 2 in >that complaint alleged appellant possessed methamphetamine in violation of Health
and Safety Code section 11377, subdivision (a), but the court dismissed that
count 2 on February 9, 2010, pursuant to negotiations. Identity theft was count 2 in an >information filed in the new case under
a completely different case number, i.e., case
No. NA090771.

The phrase “ ‘same
proceeding’ as used in [Penal Code] section 1210.1(b)(2) means the prosecution
of crimes properly charged in a single
accusatory pleading.” (>People v. Barros (2012) 209 Cal.App.4th
1581, 1589, italics added; People v. Orabuena (2004) 116 Cal.App.4th 84, 95 [“In
order for the defendant to be convicted in the same proceeding, the
disqualifying felony or misdemeanor would have to be charged in the accusatory
pleading”].) Appellant was convicted of
a nonviolent drug possession offense (bringing drugs into jail) in case No.
NA084631, but was not convicted “in the same proceeding,” within the meaning of
Penal Code section 1210.1, subdivision (b)(2), of a misdemeanor not related to
the use of drugs.

Fairly read, the trial
court’s comments on January 23, 2012, reflect the trial court erroneously
believed appellant was statutorily ineligible for Proposition 36 probation in
the present case (even though he already had been granted Proposition 36
probation starting on February 9, 2010, as a result of his no contest plea on
that date). Moreover, the court never
expressly disabused itself of this error during later proceedings that day or
during the proceedings on the next court date, i.e., February 21, 2012. Respondent’s arguments do not compel a
contrary conclusion.href="#_ftn4"
name="_ftnref4" title="">[4]

(2) The
Trial Court Erroneously Believed on February 21, 2012, that It Could Not
Reinstate Appellant’s Proposition 36 Probation.

We also note that, as discussed below, on
February 21, 2012, the trial court (Judge Romero) erroneously concluded
appellant’s violation of probation based on his providing false identification
information to police precluded the trial court from reinstating appellant’s
Proposition 36 probation in the present case.
Respondent concedes when a defendant violates Proposition 36 probation
by committing an
offense that is not a nonviolent drug possession offense, or by violating a
non-drug-related probation condition, the trial court has discretion to
reinstate Proposition 36 probation or to revoke the probation and sentence the
defendant to prison. (Pen. Code,
§ 1210.1, subd. (f)(1) & (2).)
“ . . . ‘The first time a probationer violates [a non-drug-related
probation] . . . condition, the court has discretion
to incarcerate the person.
[Citation.]’ [Citation.]” (People
v. Dixon (2003) 113 Cal.App.4th 146, 151, italics added.) As appellant suggested to the trial court, if
a court reinstates the defendant on probation, the court may intensify the
Proposition 36 treatment plan. (Pen.
Code, § 1210.1, subd. (f)(2).)

In
the present case, on February 21, 2012, the court first stated, “if you violated Prop 36 in a
non-drug-related manner, then Prop 36 can
end, and you are subject to regular criminal sentencing. That’s the theory why you’re here for criminal >sentencing on the former Prop 36 case.”
(Italics added.) The word “can”
suggests the trial court was aware it had discretion to reinstate probation.

However, the trial court’s
reference to the case as a “former” Proposition 36 case implies the court
believed the present case was at one time a Proposition 36 case, >but was no longer a Proposition 36 case as
of February 21, 2012. That belief
was inconsistent with an inference from the word “can” that the trial court
believed it had discretion to reinstate Proposition 36 probation. Similarly, the trial court’s repeated
references to “sentencing” permit the inference the court believed the only remaining
task before it on February 21, 2012, was to sentence appellant, not to decide
whether to reinstate probation.

Indeed, the trial court’s
comments above were consistent with a trial court belief, discussed >post, that because on January 9, 2012,
Judge Meyer found appellant in violation of probation in the present case based
on appellant’s provision of false identification information to police, the
present case could not properly be viewed on February 21, 2012, as a
Proposition 36 case and, on that date, it remained only to sentence appellant.

Moreover, the court’s next
statement was unqualified and categorical:
“If you violate Prop 36 once in a non-drug-related way, Prop 36 >ends and then you have criminal
sentencing.” (Italics added.) The court thereby clearly indicated that if
appellant satisfied the condition, the court would then, as a matter of law, be
required to terminate probation. This statement therefore conflicted with any
suggestion that the court knew it had discretion to reinstate probation in the
present case.

The court next stated, “So
the theory is that you violated your Prop 36 by giving false information to a
police officer, a criminal offense.” This statement, fairly read in light of the
court’s previous categorical statement applicable in all cases, indicated that the theory as to how appellant violated
Proposition 36 in a “non-drug-related way” in the present case was that he had given false information to
police. Moreover, the trial court’s
reference to the word “theory” in this context introduced ambiguity and
suggested the issue as to whether appellant had given false information was
capable of being disputed, and thus was a proper subject for argument by the
parties.

The court then stated, “So
that ends Prop 36 for you, and you
are subject to regular criminal sentencing.”
(Italics added.) In context, the
court thereby implied that, if
appellant gave false information to police, the court was required to terminate
Proposition 36 probation. This last
statement by the court was unqualified and did not refer to “theory” or suggest
the statement was capable of being disputed or was a proper subject of
argument.

The court next stated, “That’s the theory. If you want to address that, I’ll hear
you.” These statements reasonably may be
construed as (1) a reference to the earlier “theory” that appellant violated
Proposition 36 in a “non-drug-related way” in the present case by giving false
information to police, and (2) an invitation to appellant to address that
issue, as distinct from the issue of whether, if appellant so violated
probation, the court had discretion to reinstate probation.

Appellant, in pro per,
apparently so understood the court.
Appellant’s first comment in reply pertained to “the theory of
[appellant] being in violation,”
(italics added) not to whether the court had discretion to reinstate probation
assuming a violation had occurred.

Moreover, after appellant
argued he was not in violation of probation, the court commented it would defer
to Judge Meyer since she “held the evidentiary hearing on this narrow issue.” (Italics
added.) This comment suggested Judge
Romero viewed the issue before him as a narrow one, i.e., whether appellant had
violated probation, a matter as to which Judge Meyer already had made a
dispositive factual finding. Judge
Romero by this comment gave no hint an additional issue was present, i.e.,
whether, even if appellant violated probation, the court should reinstate
probation. The court’s subsequent
comments clearly indicate it focused on sentencing, not whether the court could
reinstate probation, and when appellant attempted to discuss his possible
participation in a drug program, the court indicated instead that it was
interested in the issue of precommitment credits.

We conclude appellant has
demonstrated the trial court erroneously believed that if appellant violated
probation because he provided false identification information to police, the
trial court could not reinstate appellant’s Proposition 36 probation. Respondent’s arguments do not compel a
contrary conclusion.href="#_ftn5"
name="_ftnref5" title="">[5]

We will remand the matter to
permit the trial court to exercise its discretion in deciding whether or not to
reinstate appellant’s Proposition 36 probation.
We express no opinion as to how the trial court should exercise that
discretion or as to what appellant’s sentence should be in the event the trial
court decides not to reinstate appellant’s probation.

>DISPOSITION

The
judgment is affirmed, except appellant’s sentence is vacated, the matter is
remanded, and the trial court is directed to exercise its discretion in
deciding whether or not to reinstate appellant’s Proposition 36 probation and
for further proceedings

consistent with this opinion.

NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS









KITCHING,
J.



We concur:









CROSKEY,
Acting P. J.











ALDRICH,
J.