P. v. Weight

Filed 10/25/06 P. v. Weight CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard E. Mills, Judge. Affirmed.

Terry E. Weight appeals the denial of his request to be reinstated on Proposition 36 probation (Substance Abuse and Crime Prevention Act of 2000, codified in Pen. Code^[1] §§ 1210, 1210.1, 3063.1). He contends the evidence was insufficient to support a

finding he had violated a non-drug-related condition of his probation. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, Weight was convicted of possessing a controlled substance and granted three years probation conditioned, inter alia, on serving 270 days in local custody. In 2000, while still on probation, Weight was convicted of Vehicle Code violations and again granted probation conditioned on serving 270 days in local custody.

In November 2004, Weight pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in exchange for probation under Proposition 36 and dismissal of another count. Among other things, he was ordered to report to the probation department and to appear at a hearing on December 3, 2004.

At the December 3, 2004 hearing, Weight was admonished to timely appear at the next hearing, which was scheduled for January 7, 2005. Weight did not appear at the January hearing, his probation was summarily revoked and a bench warrant was issued.

In August 2005, following his arrest on other charges, a probation revocation hearing was held. At the hearing, Weight's counsel explained that the day after the December hearing, Weight had been in a car accident, was hospitalized, and given medication, including hydrocodeine. When Weight went to the Proposition 36 program, he was told he could not continue in the program because of the medication he was taking, which would result in positive drug tests. At the same time, Weight's girlfriend had recently given birth and was suffering from post partum depression so Weight had to take care of both the baby and his girlfriend. He also had transportation problems because his car was destroyed in the accident.

The court revoked Weight's probation "because of the absconding," for which there was "no acceptable reason."

At the sentencing hearing, the court indicated it had initially intended to sentence Weight to prison, but given the circumstances presented by defense counsel, decided instead to grant a non-Proposition 36 probation conditioned, inter alia, on Weight serving 270 days in local custody with credit for time served.

DISCUSSION

"In general, Proposition 36 requires probation and drug treatment, rather than incarceration, for a defendant convicted after its effective date of a nonviolent drug possession offense . . . . (§§ 1210.1, subd. (a), 1210, subd. (a).)" (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1206.) It contains specific rules applicable when a defendant violates probation. (§ 1210.1.) "These rules, which are enunciated in subdivision (e) of section 1210.1, recognize that 'drug abusers often initially falter in their recovery' and 'give[] offenders several chances at probation before permitting a court to impose jail time.' " (People v. Guzman (2003) 109 Cal.App.4th 341, 347; In re Taylor (2003) 105 Cal.App.4th 1394, 1397.)

If a first time violation is a drug-related condition, the court must reinstate the Proposition 36 probation unless it finds the defendant is a danger to the safety of others. (§ 1210.1, subd. (e)(3)(A).) Similarly, for a second drug-related violation, the trial court must reinstate the probation unless it makes specific findings the defendant is a danger to the safety of others or is unamenable to drug treatment. (§ 1210.1, subd. (e)(3)(B).)

In contrast, if the probation violation is non-drug related, the defendant is not entitled to the same grace period and the trial court has discretion to incarcerate the defendant. (§ 1210.1, subd. (e)(2); People v. Dagostino (2004) 117 Cal.App.4th 974, 988.)

A failure to report to a probation officer may or may not be drug related; it is drug related when, for example, the purpose of the visit is to drug test. (In re Taylor, supra, 105 Cal.App.4th 1394, 1398, see also People v. Atwood (2003) 110 Cal.App.4th 805, 810-811.) This court, in People v. Johnson (2003) 114 Cal.App.4th 284, 299 (Johnson), held violating a general condition to report to a probation officer is not drug related when the defendant had never reported to the probation officer. (Contrast People v. Atwood, supra, at pp. 810-813 [where defendant failed to keep a scheduled appointment with her probation officer and prosecutor failed to present evidence as to purpose of appointment, case remanded to allow prosecutor to present evidence the appointment was non-drug related].)

Here, Weight did not merely miss one appointment nor fail to make drug-testing appointments, he failed to make any contact with his probation officer for over eight months. These circumstances, similar to those present in Johnson, constitute substantial evidence of a non-drug-related violation. Accordingly, the court was entitled to reject

reinstatement of Proposition 36 probation and to impose 270 days of custody as a condition of a non-Proposition 36 probation.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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