P. v. Kalteich

Filed 2/3/10 P. v. Kalteich CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D. Siefkin, Judge.

James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On January 18, 2008, appellant, Carl Mark Kalteich, pled guilty to possession of methamphetamine (Health & Saf. Code, 11377) and admitted three prior prison term enhancements (Pen. Code, 667.5, subd. (b)).^[1]

On appeal, Kalteich contends the court abused its discretion when it terminated his Proposition 36 probation and sentenced him to a prison term. We will affirm.

FACTS

On November 2, 2007, Kalteich was arrested for possession of methamphetamine and possession of a syringe (Bus. & Prof. Code, 4140).

On November 6, 2007, the district attorney filed a complaint charging Kalteich with possession of methamphetamine (count 1), possession of a syringe (count 2) and five prior prison term enhancements.

On January 18, 2008, while in the custody of the Department of Corrections and Rehabilitation, Kalteich entered his plea in this matter in exchange for the dismissal of count 2 and two of the prior prison term enhancements. The court then suspended imposition of sentence and placed Kalteich on Proposition 36 probation for three years.

On February 21, 2008, the probation department informed the court that Kalteich had been returned to the Department of Corrections and Rehabilitation on February 7, 2008, and was scheduled to be released from there on May 19, 2008.

On March 12, 2008, the court issued a bench warrant for Kalteichs arrest after he failed to appear at a hearing on that date.

On May 28, 2008, the court reinstated Kalteichs probation after finding he did not violate his probation. The court also ordered Kalteich to report to the probation department on June 11, 2008.

On July 8, 2008, the probation department filed an order to show cause alleging Kalteich violated his probation by failing to report to the probation department, complete substance abuse treatment, register as a narcotics offender, and complete AIDS education.

On October 17, 2008, after Kalteich admitted the allegations he violated his probation, the court revoked and then reinstated probation on the original terms and conditions. The court also ordered Kalteich to report to the probation department within seven days of being released from custody.

On January 23, 2009, the probation department filed an order to show cause again alleging that Kalteich failed to report to the probation department, complete substance abuse treatment, register as a narcotics offender, or complete AIDS education.

On February 11, 2009, Kalteich failed to show up for a hearing in this matter.

On February 19, 2009, Kalteich was arrested based on a warrant that was issued for his non-appearance at the February 11, 2009, hearing.

At a probation violation hearing on March 18, 2009, Probation Officer Michael Jimenez testified that Kalteich was released from Deuel Vocational Institute on November 27, 2008, and that he never reported to the probation department after that. Jimenez also testified that Kalteich had not provided evidence that he enrolled in a drug treatment program, registered as a narcotics offender, or completed AIDS education.

Kalteich testified that from January 18, 2008, through November 27, 2008, he was out of custody approximately four weeks. On January 26, 2008, he was released from custody and was out two weeks before he was arrested for possession of a pocketknife. This resulted in Kalteich serving a five-month parole term from which he was released in August 2008. Kalteich was out for two weeks before he was again arrested after he was implicated in a vehicle theft that ultimately resulted in his guilty plea to attempted vehicle theft. Kalteich was next released from custody on November 27, 2008, and eventually moved in with a friend.

According to Kalteich, he missed the February 11, 2009, hearing because he got the date mixed up with other hearing dates he had pending for several citations he received for driving without a vehicle registration. Additionally, he lost the letter from the probation department informing him of the hearing when his truck containing the letter was towed. Kalteich admitted that he violated his probation as alleged in the order to show cause.

After hearing counsels arguments, the court found that Kalteich violated his probation and that he refused treatment. In so finding the court stated,

I agree the People have not proven unamenability for treatment. That in the Courts eyes, however, is not the issue.

The issue is whether this defendant by his own conduct, is refusing treatment. And this Court does find that he was placed on probation in January of 2008; that he was repeatedly ordered to report to probation; that he was repeatedly ordered to be assessed; that he was repeatedly ordered to enroll in treatment; that he failed to do any of those things; has never had a single day of treatment.

I also find that this defendant has repeatedly engaged in activity which has resulted in parole violations, as well as in new law violations, all of which illustrates to this Court this defendant is more interested in engaging in criminal activity than he is in treatment. I find he has refused treatment.

The court then revoked Kalteichs probation and sentenced him to an aggregate term of four years four months, the mitigated term of 16 months on his possession of methamphetamine conviction and three consecutive one-year, prior prison term enhancements.

DISCUSSION

Kalteich contends the trial court erred in terminating his Proposition 36 probation after he violated a drug-related condition of probation only twice, not three times as required by the statute. We disagree.

The Substance Abuse and Crime Prevention Act of 2000, enacted by the voters in Proposition 36, added sections 1210 and 1210.1 to the Penal Code. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1112.) It amended state law to require that certain adult drug offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment. (People v. Floyd (2003) 31 Cal.4th 179, 183.)

Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.) The proposition includes specific rules to be applied when a defendant granted probation with a drug treatment condition violates a condition of probation. (People v. Guzman (2003) 109 Cal.App.4th 341, 347.) Different rules apply depending on whether the defendant violates a drug-related or non-drug-related condition of probation. (Id. at p. 348.) Former section 1210.1 subdivision (f)^[2]provides: The term drug-related condition of probation shall include a probationers specific drug treatment regimen, employment, vocational training, education programs, psychological counseling, and family counseling.

Proposition 36 provides that (1) the first time an offender violates a drug-related condition of probation, the offender is entitled to be returned to probation unless he or she poses a danger to others, (2) the second time the offender violates a drug-related condition of probation, he or she is entitled to be returned to probation unless the offender poses a danger to others or is unamenable to treatment, and (3) the third time the offender violates a drug-related condition of probation, he or she loses the benefit of Proposition 36s directive for treatment instead of incarceration. (See People v. Hazle, supra, 157 Cal.App.4th at pp. 572-573.) Proposition 36 does not, however, extend the same grace to probationers who violate non-drug-related conditions of probation. The first time a probationer violates such a condition, the court has discretion to incarcerate the person. (People v. Dixon (2003) 113 Cal.App.4th 146, 151.)

In People v. Guzman, the defendant accepted Proposition 36 probation, but then left the country, failed to appear in court, and failed to report to his designated drug treatment center. When the defendant appeared involuntarily in court on a bench warrant, his counsel argued, inter alia, that his actions could not be deemed a refusal of treatment because he had accepted drug treatment at his sentencing hearing. (People v. Guzman, supra, 109 Cal.App.4th at pp. 343-345.) The trial court revoked probation on the ground that the defendant had rendered himself unamenable for drug treatment. (Id. at p. 345.)

The Court of Appeal affirmed, stating,

We hold that the eligibility requirements continue to apply even after the initial grant of probation. To be sure, the trial court would be justified in terminating the probation of a defendant who commences drug treatment and who later advises the court he or she no longer wishes to continue in treatment and would rather serve time. It follows necessarily, then, that the trial court can terminate the probation of a defendant who, by his conduct following the grant of probation, refuses to undergo drug treatment. Such a defendant is to be distinguished from a defendant who commences drug treatment and thereafter falters by violating conditions of probation. The transgressions of such a defendant would be analyzed as probation violations pursuant to section 1210.1, subdivision (e). Although the trial court stated that defendant was no longer amenable to treatment, for all intents and purposes, it concluded that defendant was ineligible for drug treatment under Proposition 36. This finding is unassailable. (People v. Guzman, supra, 109 Cal.App.4th at p. 350, fn. omitted.)

Here, Kalteich never complied with the probation orders requiring him upon release from custody to report to the probation department, enroll in a substance abuse program, register as a narcotics offender, and complete AIDS education. Further on March 18, 2009, he appeared at a hearing in this matter only because he was arrested on February 19, 2009, on a warrant issued for his non-appearance earlier that month. Thus, in accord with Guzman, we conclude the record supports the trial courts finding that Kalteich was no longer eligible for Proposition 36 probation because he refused treatment.

Kalteich cites the passage from Guzman quoted above to contend that Guzman held that a trial court may only terminate a Proposition 36 defendant before his third probation violation if he refuses treatment by his conduct and the trial court finds he is no longer amenable to treatment. (Italics added.) Thus, according to Kalteich, since the trial court here did not find he was unamenable for treatment, it erred in terminating his Proposition 36 probation after only his second violation of probation. Kalteich is wrong.

The cited reference does not support Kalteichs assertion. In the above quote, the Guzman court cited the trial courts statement that the defendant was not amenable to drug treatment only in explaining that this statement manifested the courts conclusion that the defendant was no longer eligible for drug treatment under Proposition 36.^[3] (People v. Guzman, supra, 109 Cal.App.4th at p. 350.) The Guzman court, however, did not hold, as Kalteich suggests, that the trial court must also make a separate finding of unamenability to drug treatment before it can terminate a defendants Proposition 36 probation. In any event, by finding that Kalteichs conduct amounted to a refusal to undergo drug treatment, the court implicitly found that he was no longer amenable to such treatment.

Kalteich also contends the evidence does not support the courts finding that he refused to undergo treatment because he was out of custody and able to comply with these orders only 90 days between the date of his initial sentencing on January 18, 2008, and his arrest on February 19, 2009. This argument is unpersuasive because these 90 days provided Kalteich with plenty of time to comply with his probation orders if he were so inclined. Accordingly, we reject Kalteichs contention that the court erred when it revoked his Proposition 36 probation and sentenced him to prison.

DISPOSITION

The judgment is affirmed.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^* Before Cornell, Acting P.J., Gomes, J. and Dawson, J.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Former section 1201.1 was amended effective July 12, 2006, (Stats. 2006, ch. 63, 7); however, a preliminary injunction was issued on September 14, 2006, enjoining the People from taking any action to implement, enforce or give effect to Senate Bill 1137 ... until such time as a trial on the merits may be had or until further order of this Court. (Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06-278911).) The court granted the plaintiff's motion for summary judgment and granted its writ of mandate. On July 14, 2008, the court issued its judgment granting writ of mandate and injunctive and declaratory relief. The writ directed the People to refrain from taking any action to implement, enforce, or give effect to [any of the provisions of] Senate Bill 1137. The permanent injunction restrained the People from taking any action to implement, enforce, or give effective to Senate Bill 1137. Senate Bill No. 1137 (2005-2006 Reg. Sess.) was declared invalid in its entirety and without force or effect. Accordingly, as in People v. Enriquez (2008) 160 Cal.App.4th 230, 240, footnote 2, and People v. Hazle (2007) 157 Cal.App.4th 567, 577, we will apply the former version of section 1210.1, that is, the version that was in effect before the Legislature enacted the 2006 amendment. In any event, the subdivisions at issue here, former section 1210.1, subdivision (e)(3)(B) (subd. (f)(3)(B) in the amended version), and former section 1210.1, subdivision (3)(2) (subd. (f)(2) in the amended version), while renumbered are substantively the same in both versions.

^[3] In revoking the defendants Proposition 36 probation, the trial court in Guzman stated, Ill find that he is no longer amenable to treatment by virtue of his absconding from the jurisdiction of the court and from the program and, in fact, never started the program. (People v. Guzman, supra, 109 Cal.App.4th at p. 345, italics added.)