P. v. Reynolds

P. v. Reynolds

Filed 6/13/08 P. v. Reynolds CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Victoria E. Fuller, under appointment by the Court of Appeal; Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.

The court found defendant in violation of a nondrug-related condition of his Proposition 36 probation, revoked his probation, and imposed the three-year suspended prison term specified in his plea agreement. Defendant appeals, contending the matter must be remanded because the court was unaware of its discretion to reinstate Proposition 36 probation. We find that, to the extent the court did not understand its discretion, any error was harmless. The judgment is, therefore, affirmed.

I. FACTS AND PROCEDURAL HISTORY

The People charged defendant with one count of possession of a controlled substance (count 1Health & Saf. Code,  11350, subd. (a)) and alleged defendant had one prior strike conviction (Pen. Code,  667, subd. (b)) and had served five prior prison terms without remaining free from custody for five years (Pen. Code,  667.5, subd. (b)). On July 14, 2006, defendant pled guilty to count 1. In return, the remaining allegations were dismissed, defendant received a three-year suspended prison sentence, and he was admitted to Proposition 36 probation. One of defendants probation conditions required that he enroll in a treatment program within seven days of his sentencing on August 11, 2006.

Defendant failed to appear at a probation review hearing scheduled for September 25, 2006. The court ordered his probation summarily revoked and issued a warrant for his arrest.

On January 30, 2007, defendant admitted violating his probation by failing to appear at the review hearing. The court ordered defendants probation revoked and reinstated.

At a review hearing held on March 26, 2007, the court found that defendant had failed to enroll in a drug treatment program. Nonetheless, it ordered probation continued on the same terms and conditions.

Defendant failed to appear at the next review hearing scheduled for April 16, 2007. The court summarily revoked defendants probation and issued a warrant for his arrest.

Defendant was subsequently arrested for a misdemeanor and a contested probation revocation hearing was scheduled for August 14, 2007. At the conclusion of that hearing, the court found defendant in violation of his probation for two reasons: (1) his failure to timely enroll in a drug treatment program; and (2) his misdemeanor charge amounted to violation of his probation conditions requiring that he cooperate with law enforcement and that he violate no law. Defense counsel requested that, despite the courts findings, it find defendant still amenable. The court replied that it was going to find this is a non-drug-related violation; therefore, [defendant is] not amenable to continue [Proposition] 36. The question is, is he eligible for probation reinstatement.

The court further explained that, I do have to find hes not amenable for probation. I can give him probation again. But if I dont give him probation, Im stuck with the three years which is quite generous. [] [Defendant], Ill just address you for a moment. You have a long record, and we reached out to you here with [Proposition] 36 with an effort to help you and you kind of dropped the ball on it. You left us no alternative. [] But, [defense counsel], if you want to try to argue hes amenable to continue probation, Ill listen. The court reiterated, I could put him back on probation.

Defense counsel argued that the court should place defendant back on probation, requiring that he participate in a drug treatment program and that he serve a year or less in jail. After recounting defendants criminal history, the court noted, I just cannot in good conscience give [defendant] probation. I hate to give up on you, [defendant], but youve never given yourself a chance to live a normal life. You were facing 11 years on this case and you were given [Proposition] 36, which is designed to help even the most hardcore users. You waited over a year to enroll, and so that is gone and Im going to have to sentence you to the three years suspended that was given to you before. It doesnt make me happy at all to do that but I see no other choice.

The court further explained, Im actually going to sentence [defendant] to three years because I think its appropriate in this case because of his record. He has been to prison at least five times. Probation is out of the question just by[Defendant] has proven himself unamenable to any supervision in the community, and I think the upper term is justified by his record.

II. DISCUSSION

Defendant maintains that the court misunderstood the scope of its discretion, erroneously concluding that it had no choice but to revoke defendants Proposition 36 probation due to his violation of a nondrug-related condition. Hence, he asserts the matter must be remanded so that the court may properly exercise its discretion in determining whether it should revoke defendants Proposition 36 probation. The People contend defendant forfeited the issue by failing to object on this basis below. In the alternative, the People argue the court was aware of its discretion to reinstate defendants Proposition 36 probation, it simply exercised that discretion against defendants wishes. Finally, to the extent the court was not aware of its discretion to reinstate Proposition 36 probation, the People contend any error was harmless.

Former Penal Code section 1210.1, subdivision (e) provided that, If a defendant receives [Proposition 36 probation], and violates that probation either by being arrested for an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The court may modify or revoke probation if the alleged violation is proved.^[1]The first time a probationer violates such a condition, the court has discretion to incarcerate the person. (In re Taylor (2003) 105 Cal.App.4th 1394, 1398.)

Defendant acknowledges that he failed to raise the specific issue below of whether the court understood it had discretion to reinstate Proposition 36 probation. However, he contends that his request that the court find defendant still amenable[] was, in essence, a request for reinstatement of Proposition 36 probation which, therefore, preserved the issue on appeal. We agree.

Both parties and the court below referred to defendants amenability, presumably to treatment, as it related to reinstatement of defendants Proposition 36 probation. Indeed, defense counsel initiated the references to amenability. This is unfortunate since, as the court found defendants violation of probation to be a nondrug-related offense, amenability to treatment was not an element the court was required to determine in order to reinstate Proposition 36 probation. Rather, amenability to treatment is a required factor for consideration of reinstatement of Proposition 36 probation where the defendants violation of probation is drug related. (Former Pen. Code,  1210.1, subd. (e)(3)(B).)

Nonetheless, defendants request that the court find him still amenable was essentially an argument that the court retained discretion to reinstate him on Proposition 36 probation and should do so. This was sufficient to preserve the issue for appeal. (People v. Sharp (2003) 112 Cal.App.4th 1336, 1339 [where counsel below raises issue, in general, that the defendant should be sentenced to Proposition 36 probation, such contention is broad enough to preserve more specific issue on appeal]; People v. Tanner (2005) 129 Cal.App.4th 223, 228 [where court and all counsel operated under mistaken comprehension of applicable Proposition 36 law, failure to object on specific basis did not forfeit issue for appeal].)

Defendant contends that the courts statement that it found defendant unamenable to Proposition 36 probation by virtue of his violation of a nondrug-related condition of his probation, demonstrates that it was unaware it had discretion to reinstate Proposition 36 probation. The argument has superficial appeal. Indeed, one could read the statement as a determination that a violation of a nondrug-related condition of Proposition 36 probation makes a defendant per se unamenable to treatment and, therefore, ineligible for reinstatement of Proposition 36 probation. Such a reading would, of course, be legally inaccurate. Nevertheless, one could also read the statement as the court actually exercising its discretion in determining that Proposition 36 probation should not be reinstated because defendant was unamenable to treatment due to his violations. Indeed, a court is presumed to be aware of and to have followed applicable law. (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) Here, the court found defendant had violated his probation by failing to timely register for a drug treatment program, by failing to comply with the directives of a peace officer, and by violating the law. The court had already found defendant in violation of his probation on a previous occasion. Defendant failed to appear at two probation review hearings and warrants had to be issued for his arrest in order to compel his appearance at future hearings. Defendants probation officer testified that defendants performance on probation was poor and that he was not eligible or amenable to continued Proposition 36 probation. Thus, the facts would certainly support the courts exercise of its discretion in determining that defendant was unamenable to treatment.

Nevertheless, to the extent that the court did misunderstand its discretion to reinstate Proposition 36 probation, we find any error harmless. Where the record shows that a court was unaware of its discretion, an appellate challenge to the courts ruling may be rejected where the record shows that the court would not, in any event, have exercised its discretion in defendants favor. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Here, while the court may not have shown its work in exercising discretion in determining that defendants Proposition 36 probation should not be reinstated, it certainly did so when determining not to grant defendant probation outside of Proposition 36. Defense counsel argued that the court should grant defendant probation with conditions including drug treatment and jail time. The court recognized several times that it had discretion to grant defendant probation. The court reviewed defendants criminal history and his performance on probation in the instant case. Thereafter, it determined that defendant was unamenable to any probation supervision and sentenced him to the suspended three-year term contained in his plea agreement. Thus, where the court determined that it could not grant defendant probation with conditions including jail, it certainly would not have granted defendant the more lenient Proposition 36 probation which would have forbidden any incarceration. (Former Pen. Code,  1210.1, subd. (a).) Therefore, any error was harmless.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

J.

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^[1] By request filed February 19, 2008, defendant requested this court to take judicial notice of an order granting preliminary injunction in case No. RG06-278911 entered on September 14, 2006, in the Alameda County Superior Court, a copy of which was attached to his request. The order enjoins the State Attorney General, among others, from enforcing Senate Bill No. 1137 enacted on July 12, 2006, which rendered substantial changes to Penal Code section 1201.1. We deny the request as unnecessary. The People agree with defendants contention that the version of Penal Code section 1201.1 as modified by Senate Bill No. 1137 has been enjoined from taking effect. Moreover, both parties cite several cases for the proposition that the previous version of Penal Code section 1210.1 is the operative law here. (People v. Enriquez (2008) 160 Cal.App.4th 230, 240, fn. 2; People v. Hazle (2007) 157 Cal.App.4th 567, 577, fn. 1; People v. Hartley (2007) 156 Cal.App.4th 859, 861, fn. 1.) Therefore, we rely on those authorities, rather than judicial notice, for our application of the previous version of Penal Code section 1210.1.