P. v. Garner

Filed 11/5/07 P. v. Garner CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Linda Garner challenges a state prison sentence imposed after she opted out of Proposition 36 treatment at a third drug-related probation violation hearing. We affirm.

Background

In May 2005, defendant was charged by information with possession of a controlled substance (Health & Saf. Code,  11377, subd. (a); count 1), possession of a smoking device (Health & Saf. Code,  11364; count 2), and unlawful possession and alteration of a license (Veh. Code,  11819, subd. (e); count 3). It was alleged that she served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] Defendant pled no contest to possession of a controlled substance and admitted two of the prior prison term allegations. The court found her guilty, suspended imposition of sentence, and placed defendant on probation for three years pursuant to Proposition 36.[2] The court dismissed counts 2 and 3 and the third prior prison term allegation.

On October 14, 2005, defendant admitted a drug related violation of probation. The court continued her on probation with additional drug-related conditions. On December 2, 2005, defendant admitted a second drug-related violation as well as a non-drug-related violation. The court continued her on probation on the condition that she successfully complete a residential treatment program.

In January 2006, the probation department sought to revoke defendants probation, alleging she had absconded from her residential treatment program. Defendant appeared at the hearing with her attorney, who said, Judge, with regard to Ms. Garners matter, its pending a third drug-related violation for having left a residential program which would exclude her from Prop. 36. Should that violation be admitted, or found to be true, and having discussed this with her, Ms. Garner is indicating she, at this point, is just going to ask to opt outone way or the other, Prop 36 or PC 1210 is going to be terminatedand refer it back for a traditional probation sentencing. (Emphasis added.) The trial court asked the prosecutor if she had intended to push today for that third drug-related? She said, Yes. I have alleged it already . . . and I did communicate by e-mail with [defense counsel] about this, so I understand that what shes doing is simply opting out in lieu of an admission. (Emphasis added.) The court then conducted the following colloquy with defendant:

THE COURT: All right. And Ms. Garner, you understand that you do have a right to have a hearing on that drug-related violation? [] That is not a foregone conclusion that I would find it, but not knowing what the state of the evidence is, perhaps you know that I would, I dont know. But in any event, you understand that youre giving up that right to have a hearing?

THE DEFENDANT: Yes, I do.

THE COURT: All right. And do you understand, then, that youre not going to have any chance of getting this dismissed at the end of the Prop. 36 probationary period?

THE DEFENDANT: Yes, maam.

THE COURT: Ill allow the opt-out . . . .

At sentencing on May 30, 2006, defendant asked to be reinstated on probation on the condition she complete a residential treatment program. In the alternative, she asked the court to sentence her to the lower term. The court denied probation and imposed the midterm of two years for the possession charge and two one-year prior prison term enhancements for a total state prison sentence of four years.

Discussion

Defendant Garner argues the court improperly revoked her probation because she never admitted the third drug-related violation and the court never found the violation occurred. She contends that Proposition 36 probation can only be revoked in accord with section 1210.1, which supersedes the trial courts general power to revoke probation under sections 1203.2 and 1203.3. (In re Mehdizadeh (2003) 105 Cal.App.4th 995, 999, fn. 6, 1006.)

The purpose of Proposition 36 is to divert nonviolent drug offenders from incarceration to community based substance abuse treatment. (People v. Tanner, supra, 129 Cal.App.4th at p. 231, citing Prop. 36,  3(a).) The law achieves this purpose by requiring that most nonviolent drug offenders be placed on probation conditioned on completion of a drug treatment program. ( 1210.1, subd. (a).)[3] At the first motion to revoke probation for a drug-related violation, the court can revoke defendants probation only if the prosecutor proved the violation and proved she is a danger to society. ( 1210.1, subd. (e)(3)(A).) At the second motion, the court can revoke probation only if the prosecutor proved the violation and that defendant is either a danger to society or unamenable to drug treatment. ( 1210.1, subd. (e)(3)(B).) In determining whether a defendant is unamenable to drug treatment, the court may consider whether the defendant has asked to be removed from the program. (Ibid.) At the third motion, the court is required to conduct a hearing to determine whether probation shall be revoked. If the violation is proved, the defendant is not eligible for continued probation. ( 1210.1, subd. (e)(3)(C).) A defendant who successfully completes drug treatment can petition the court to set aside the underlying conviction and dismiss the information, complaint, or indictment. ( 1210.1, subd. (d)(1).)

Respondent asserts that probation was properly revoked under section 1210.1, subdivision (b)(4) because respondent opt[ed] out of Proposition 36 treatment. Section 1210.1, subdivision (b)(4) provides that section 1210.1, subdivision (a) does not apply to any defendant who refuses drug treatment as a condition of probation. In other words, opting out is tantamount to a refusal to treat, making the defendant ineligible for Proposition 36 treatment.

Defendant argues that she never expressly refused drug treatment as a condition of probation. There was no discussion at the Prop 36 revocation hearing of her willingness to participate in treatment. Following the hearing, she participated in drug treatment in jail, told her probation officer she wanted another chance at treatment, and was tentatively accepted into a program pending Behavioral Health Assessment Team (BHAT) approval. At sentencing, defendant requested reinstatement of probation with the condition she enroll in a residential treatment program and she reported that she had been participating in treatment in jail. She disputed a BHAT assessment that she was not amenable to drug treatment.

Yet she offers no cogent explanation of what she thought opting out meant when she made the election. At the hearing, her attorney refers to the two possible outcomes of the probation violation hearing: the defendant admits the violation or the court finds that a violation occurred. The court confirmed with the prosecutor that she intended to push today for that third drug-related, which we interpret to mean that the prosecutor was prepared to put on evidence of the violation.

The regrettable lack of precision in the language used by the participants at the hearing does not preclude our conclusion that section 1210.1, subdivision (b)(4) is authority for the defendants right to opt out of the Proposition 36 statutory scheme.

We conclude that defendant had the right to waive her statutory rights under Proposition 36 in the circumstances.[4]An implicit bargain underlies Proposition 36. The defendant agrees to participate in treatment in an effort to end his or her chemical dependency. In exchange, the defendant receives access to treatment and freedom from incarceration. Section 1210.1, subdivision (b)(4) acknowledges the defendants side of this bargain. If the defendant does not agree to work at recovery through treatment and the drug court, Proposition 36 cannot achieve its purpose. Therefore, a defendant who refuses treatment as a condition of probation within the confines of the Proposition 36 regimen is no longer eligible for the benefits of Proposition 36.

Garners interpretation of section 1210.1, subdivision (b)(4) would require a defendant to expressly refuse all drug treatment, even as a condition of conventional probation, in order to opt out of the Proposition 36 program. We are not required to apply Proposition 36 literally where such application would plainly conflict with the intent of the statute. (People v. Wandick (2004) 115 Cal.App.4th 131, 135.)

The record demonstrates that when Garner opted out of Proposition 36 probation, she intended to abandon her side of the bargain. She knowingly and voluntarily waived her right to continue to participate in the Proposition 36 statutory scheme. The court obtained an express waiver of her rights: the right to a hearing where the prosecution was required to prove her third drug-related violation of probation before the court could revoke her probation, and the right to petition the court to set aside her conviction if the prosecution failed to prove the violation and defendant later successfully completed treatment.

Defendants waiver of Proposition 36 treatment of her third alleged drug-related violation of probation did not undermine the public policy. In People v. Campbell, this district held that Proposition 36 requirements cannot be waived if contrary to the public interest. (People v. Campbell (2004) 119 Cal.App.4th 1279, 1290.) The defendant in Campbell had a second drug-related violation of probation; he asked the court to allow him to participate in outpatient rather than the residential treatment recommended by the probation department. (Id. at p. 1283.) The court agreed on the condition the defendant waive his protections under Proposition 36 and stipulate that if he violated probation again he would automatically be sentenced to three years in state prison. (Id. at p. 1284.) The court made this proposal knowing it was unlikely to bring about the defendants recovery:  Im going to allow you to shoot yourself in the foot this way.  (Ibid.) Defendant agreed to the condition, subsequently violated his probation, and was sentenced to three years in state prison. (Id. at pp. 1284-1285.) The court of appeal held that permitting the defendant to select his form of treatment on the condition he accept a particular sentence was contrary to the mandates of the statute, which required the court itself determine appropriate drug treatment. (Id. at pp. 1287-1288.) As relevant here, the appellate court further held that the statutory mandate was not subject to waiver by the defendant because the waiver was contrary to public policy. (Id. at p. 1289.) One purpose of Proposition 36 is to rehabilitate drug offenders rather than incarcerate them, thus serving the publics interest in promoting public health and avoiding the high costs of incarceration. (Id. at pp. 1289-1290.) The publics interest is not served when the court conditions a maximum prison term on the basis of providing the defendant with the treatment that the defendant desiresnot the treatment that the court deems is most likely to succeed. (Id. at p. 1290.)

Here, defendants waiver of Proposition 36 treatment was not contrary to public policy. The waiver relieved the prosecution of the burden of proving the violation. The trial court sentenced defendant under laws applicable to offenders other than those who agree to the terms of Proposition 36. Had the sentencing court reinstated defendant on probation on the condition she continue drug treatment outside the Proposition 36 scheme, we would be faced with a more difficult question whether the sentencing courts actions were consistent with Proposition 36. That is not this case. The court sentenced defendant to state prison. There was no error.

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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[1] All further statutory references are to the Penal Code.

[2] Proposition 36, the Substance Abuse Crime Prevention Act of 2000, is codified at sections 1210, 1210.1 and 3063 and Health and Safety Code division 10.8 (commencing with section 11999.4). (People v. Tanner (2005) 129 Cal.App.4th 223, 227.)

[3] Section 1210.1 was amended effective July 12, 2006. (Stats. 2006, ch. 63,  7.) The former version of the statute was in effect at the time Garners probation was revoked in February 2006. (Stats. 2001, ch. 721,  3.) The citations to the statute in this opinion refer to the statute as it read before the July 2006 amendments.

[4] We use the term waiver advisedly. As the Supreme Court explained in People v. Simon although the terms waiver and forfeitureare often used interchangeably, they have distinct meanings: a forfeiture is the failure to timely assert a right and a waiver is the intentional relinquishment of a right. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) In People v. Esparza, the court held that Proposition 36 probation is mandatory and not subject to the waiver doctrine. (People v. Esparza (2003) 107 Cal.App.4th 691, 699.) In Esparza, waiver clearly referred to a forfeiture due to failure to affirmatively request drug treatment. (Ibid.)