P. v. Jackson
Filed 1/28/14 P. v. Jackson CA2/6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES WESLEY
JACKSON, SR.
Defendant and Appellant.
2d Crim. No. B249071
(Super. Ct. No. F485679)
(San Luis Obispo County)
Charles
Wesley Jackson was convicted by plea of possession of methamphetamine (
11377, subd. (a)) and appeals from the order granting him probation after the
trial court found he was not amenable to Proposition 36 drug treatment (Pen.
Code, § 1210.1, subd. (b)(5)). We
affirm.
Proposition
36
Proposition
36 mandates probation and drug treatment, instead of incarceration, for persons
convicted of a "nonviolent drug
possession offense. . . ." (Pen. Code, § 1210.1, subd. (a).)
1210.1, however, excludes five categories of defendants from Proposition 36
drug treatment. Of relevance is
subdivision (b)(4) which excludes "[a]ny defendant who refuses drug
treatment as a condition of probation."
Subdivision (b)(5) excludes "any defendant who (A) has two separate
convictions for nonviolent drug possession offenses, (B) has participated in
two separate courses of drug treatment pursuant to subdivision (a), and (C) is
found by the court, by clear and convincing evidence, to be unamenable to any
and all forms of available drug treatment. . ."
It is
settled that the failure to report to drug treatment constitutes a refusal to
undergo drug treatment. (People v. Guzman (2003) 109
Cal.App.4th 341, 349-350.) Steve Berg, supervisor of the San Luis Obispo County
Drug and Alcohol Treatment Program, testified that appellant was twice referred
to his agency in 2004 and 2005 for Proposition 36 drug treatment. On the
first occasion, appellant threw a clipboard and walked out of the
facility. On the second referral,
appellant was extremely contentious, refused to sign any paperwork, and accused
Berg of using a one-way mirror and camera to observe him.
Appellant
never completed the intake process.
Although appellant was referred for Proposition 36 orientation multiple
times, appellant failed to show up most of the time. In November 2005, he tested positive for
drugs and later admitted using amphetamine.
Berg could not recommend a treatment plan in 2006 because appellant
refused to participate.
The
prosecution argued that appellant's failure to participate in court-ordered
drug treatment rendered him unamenable to treatment. Appellant claimed that he was sorry for his
past actions and was clean and sober during his incarceration. Appellant wrote to the court that his father
had recently died and that he now realized that he had a drug problem.
The
trial court found that appellant was granted Proposition 36 treatment three
times and failed to appear at intake or review hearings. In each case, appellant was returned to
custody on a warrant and waived treatment.
"[B]ased on his waivers in all [three] cases, [appellant]
essentially asked to be removed from the program. [¶] So taking into consideration all of
the evidence, I do find that there is clear and convincing evidence that he is
not amendable to treatment."
Discussion
Appellant
contends that he is entitled to Proposition 36 treatment as a matter of right
despite his past refusal to undergo treatment.
(See People v. Juhasz (2013) 220 Cal.App.4th 133, 139.) "In some instances a defendant's prior
failure in treatment may be highly relevant in determining his present
amenability to treatment." (
at p. 138.)
Appellant
has a long criminal history (33 convictions over 30 years) that includes a
offenses, corporal punishment on a child and felony child abuse, passing bad
checks, assaultive behavior, false information to a police officer, disturbing
the peace, and nine drug offenses. Appellant was referred to Proposition 36 drug
treatment on three prior occasions. In
each instance, he was uncooperative, returned to custody on a warrant, and
waived further treatment.
The
trial court did not err in rejecting appellant's claim that he has changed his
ways and was amenable to treatment. After
appellant pled no contest to possession of methamphetamine and was released, he
failed to report to probation. A bench
warrant issued and probation was revoked on June 30, 2013. Where the defendant's conduct reveals
"the disingenuousness of his request for drug treatment," the trial
court may find him ineligible for Proposition 36 treatment. (People v. Guzman,
109 Cal.App.4th at p. 349.)
In People
v. Castagne (2008) 166 Cal.App.4th 727 the trial court found that defendant
was not amenable to treatment after defendant was granted Proposition 36
probation in two concurrent cases and picked up two more methamphetamine
convictions. (Id., at p. 734.) Despite her pregnancy and pending jail
commitment, defendant continued to use drugs, putting her unborn baby at
risk. (Id., at p. 730.) The trial court found that defendant's
intentions to quit using drugs were sincere but inadequate to prevent her from
faltering. (Id., at p. 735.) The Court of Appeal reversed on the ground
that section 1210.1, subdivision (b)(5) requires two separate courses of drug
treatment. (Id., at p. 733.) Defendant received concurrent treatment for
two separate offenses which counted as only one course of treatment. The court noted that defendant was sincere about seeking
treatment, was participating in treatment, and "the record does not establish
with certainty that defendant's acts and omissions evinced a complete refusal
to undergo drug treatment." (Id., at p. 736.)
Unlike Castagne,
appellant was granted Proposition 36 probation three times but failed to enroll
in a court-ordered drug treatment program.
"We are persuaded that the voters did not intend Proposition 36 to
apply to a convicted drug offender, such as [appellant], who has been placed
repeatedly on Proposition 36 probation and has repeatedly violated the
conditions of such probation by refusing to enroll in a drug treatment program.
. . " (People v. Johnson (2003)
114 Cal.App.4th 284, 303-304.)
Appellant
requests that we reweigh the evidence and find, as a matter of law, there is no
clear and convincing evidence that he is unamenable to treatment. The "clear and convincing" standard
in section 1210.1, subdivision (a)(5) is for the edification and guidance of
the trial court, and was not intended as a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744,
750.) "'The sufficiency of evidence
to establish a given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to determine, and
if there is substantial evidence to support its conclusion, the determination
is not open to review on appeal. [Citations.]" (Ibid.;
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 371, p. 428.)
Conclusion
Section
1210.1, subdivision (b)(5) gives a defendant three chances at rehabilitation,
with increasing penalties for conviction, so as to provide a strong incentive
to stop his or her drug usage. (People
v. Hazle (2007) 157 Cal.App.4th 567, 572-573; People v. Guzman, supra, 109 Cal.App.4th at p.
348.) Appellant was granted three
Proposition 36 chances and refused to complete a court-ordered drug treatment
program. Ample evidence supports the
finding that appellant is not amenable to treatment within the meaning of
section 1210.1, subdivision (b)(5).
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
>
Jacquelyn H.
Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Laurie
A. Thrower, 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, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Kimberley J.
Baker-Guillemet, Deputy Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code.
