P. v. Smith
Filed 3/6/08 P. v. Smith CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. KENYATTA RENEE SMITH, Defendant and Appellant. | D051035 (Super. Ct. No. SCD182146) |
APPEAL from a judgment of the Superior Court of San Diego County, David Szumowski and Leo Valentine, Jr., Judges. Affirmed in part, reversed in part and remanded for resentencing.
On June 17, 2004, Kenyatta Smith entered a negotiated guilty plea to possessing cocaine in violation of Health & Safety Code section 11350, subdivision (a). The trial court deferred entry of judgment pursuant to Penal Code[1]section 1000 and ordered her to participate in a drug rehabilitation program. After Smith's three failed attempts to complete diversion, Judge David Szumowski found she had not performed the assigned program satisfactorily, and on April 27, 2007, entered a judgment of guilt as to the drug possession charge. ( 1000.3.)
At the sentencing hearing before Judge Leo Valentine, Jr. on May 25, 2007, Smith's counsel requested that she be sentenced to probation with placement in a drug treatment program in accordance with section 1210.1, the Substance Abuse and Crime Prevention Act of 2000 (the Act, commonly referred to as Proposition 36). Judge Valentine rejected counsel's request, in essence concluding that because Smith had participated in diversion and failed, the Act did not apply to her. He noted that Smith had not complied with previous court orders, despite being given many opportunities to do so, and opined that she would not benefit from sentencing under the Act. The court sentenced Smith to formal probation, 90 days of custody, stayed pending successful completion of probation, and a fine.
Smith contends her sentence should be set aside because she is eligible for sentencing under section 1210.1, subdivision (a), and could not be incarcerated as a condition of probation. The Attorney General concedes these issues and we agree.
Section 1210.1, subdivision (a) provides "any person convicted of a nonviolent drug possession offense shall receive probation." Upon conviction and as a condition of probation, the court is required to impose participation in and completion of an appropriate drug treatment program. The court may impose other conditions of probation, but it "may not impose incarceration as an additional condition of probation."
(Ibid.; People v. Canty (2004) 32 Cal.4th 1266, 1272-1273.) A conviction within the meaning of section 1210.1 includes both adjudication of guilt and judgment thereon. (People v. Legault (2002) 95 Cal.App.4th 178, 181; In re Scoggins (2001) 94 Cal.App.4th 650, 657-658.)
Here, Smith, who was eligible for diversion pursuant to section 1000, pleaded guilty to a nonviolent drug possession offense in June 2004. The court deferred entry of judgment; Smith waived time for pronouncement of the judgment; and the court ordered her to participate in a drug rehabilitation program. In April 2007 Judge Szumowski found she was not performing satisfactorily in the diversion program and set aside the deferred entry of judgment. This constituted an adjudication of guilt. On May 25, 2007, Judge Valentine sentenced her and pronounced judgment. It was at this time that Smith suffered a "conviction" within the meaning of section 1210.1.
Because Smith's conviction was for a nonviolent drug possession offense and she was otherwise eligible under the Act, and her first request for probation under section 1210.1 was made at the sentencing hearing in front of Judge Valentine, the court was required to sentence her to probation and could not impose incarceration as a condition of probation. Accordingly, the court erred. Moreover, although Smith's performance on diversion was unsatisfactory and the court understandably questioned whether Smith was "amenable" to drug treatment, such a finding is of no legal significance when an otherwise eligible defendant is initially sentenced under the Act. (See In re Mehdizadeh (2003) 105 Cal.App.4th 995, 999-1000.) Smith's prior failure on diversion did not render her ineligible for sentencing under the Act.
DISPOSITION
The judgment is affirmed as to the adjudication of guilt and reversed as to the sentence. The matter is remanded for resentencing.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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[1] All subsequent statutory references are to the Penal Code.
