P. v. Long

Filed 7/24/07 P. v. Long CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Thomas Dewayne Long was convicted of possession of methamphetamine. He argues that the trial court had no authority to revoke his probation because his probation violations were drug-related within the meaning of Proposition 36. (Pen. Code,  1210 et seq.) We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2005, defendant pled guilty to felony possession of methamphetamine, following an incident when he was observed giving a cigarette package containing methamphetamine to another man at the Cher Ae Heights Casino. Imposition of sentence was suspended, and defendant was placed on probation for three years according to the requirements of Proposition 36, the Substance Abuse and Crime Prevention Act, passed by California voters on November 7, 2000.^[1]

Defendants probation was subject to his compliance with a variety of conditions. Among them were requirements that he report to his probation officer and comply with his probation officers instructions, maintain employment, participate in drug treatment, refrain from possessing weapons or ammunition, refrain from using alcohol or non-prescribed drugs and refrain from associating with people who use or traffic in controlled substances. Defendant violated his probation and was reinstated to probation in April 2006, pursuant to Proposition 36. At that time he agreed to an additional condition that he not enter any casino in Humboldt County.

In an amended notice filed in July 2006 defendant was again charged with violating probation by testing positive for methamphetamine, failing to appear for testing, entering the Cher Ae Heights Casino on several occasions, and attempting to flee when his probation officer attempted a home visit. Defendant refused to answer the door when his probation officer and sheriffs deputies arrived at his home. Instead, defendant left by a back door, and was arrested approximately half a mile away. The supplemental probation report stated that defendant told the probation officer, [i]t was the dope making me go to the casinos and the reason I ran from you. The supplemental report also characterized defendants attempt to flee and casino visits as violations of non-drug related conditions. Defendant admitted the allegations.

The court found that defendants presence at the casino and his attempt to flee the home visit by his probation officer were violations of non-drug-related conditions of probation. The court revoked probation and sentenced defendant to the upper term of three years, based upon primarily [defendants] prior history of felony violations. Criminal proceedings were suspended and defendant was committed to the California Rehabilitation Center pursuant to Welfare and Institutions Code section 3051, as a person addicted to or in danger of being addicted to narcotics. He timely appealed.

DISCUSSION

A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme. [Citations.] For such a defendant, Proposition 36 supersedes the trial courts general power to revoke probation under [Penal Code] sections 1203.2 and 1203.3. [Citations.] Different rules apply depending on whether a defendant violates a non-drug-related or drug-related condition of probation.. . . . Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36s directive for treatment instead of incarceration. [Citation.] Upon such a violation, the court regains its discretion to impose jail or prison time. [Citation.] 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. [Citation.] [Citation.] [] The prosecution has the burdens of producing evidence and of persuasion that defendants violation did not involve a drug-related condition of probation.  (People v. Dagostino (2004) 117 Cal.App.4th 974, 987-988.)

Defendant argues the court erred when it revoked his probation and remanded him to custody, because the prosecution failed to demonstrate that his probation violations were not drug-related within the meaning of Penal Code section 1210.1. We disagree.

Defendants claim to the probation officer that the dope made me do it is insufficient to establish that his violations were drug relatedotherwise any violation of probation would be drug-related if the probationers conduct was caused by the ingestion of drugs. Such a result would be inconsistent with the terms of the statute, which distinguishes between drug-related and non-drug-related conditions of probation. The statute describes the term drug-related condition to include a probationers specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling. (Pen. Code,  1210.1, subd. (g).) Accepting defendants argument that a condition is drug-related if the defendant is under the influence of drugs when he commits a violation would obliterate any distinction between drug-related and non-drug-related conditions of probation. It would also make the distinction turn on the character of defendants behavior, rather than the nature of the conditions themselves. A seemingly broad condition requiring a probationer to obey all laws would thus sometimes become a drug-related condition. We will not indulge a distinction between conditions of probation that turns on a probationers sobriety.

Defendant also argues that his attempt to flee from the home visit violated a drug-related condition of probation because it was like the circumstances in reported cases involving missed drug tests, appearances in drug court, appointments at the probation office for testing or appointments with treatment providers. (See People v. Dagostino, supra, 117 Cal.App.4th 974; People v. Atwood (2003) 110 Cal.App.4th 805; In re Taylor (2003) 105 Cal.App.4th 1394; In re Mehdizadeh (2003) 105 Cal.App.4th 995; People v. Davis (2003) 104 Cal.App.4th 1443.) We are not persuaded. There is nothing in the record to suggest the probation officer went to defendants home to administer a drug test or in connection with any other drug-related purpose enumerated in Penal Code section 1210.1, subdivision (g).

The evidence before the trial court supported its conclusion that the probation officers home visit was not drug-related as the probation officer so described it in his supplemental report.^[2] As the court observed in In re Taylor, supra, 105 Cal.App.4th at page 1399, footnote 7, even for those defendants who have been convicted of drug-related offenses, not every appointment with a probation officer is drug-related. Probation officers may require defendants on probation for drug-related offenses to meet with them for non-drug-related purposes. For example, such appointments might be related to a probationers obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally. Nothing in this record suggests the home visit was for a drug-related purpose.

The terms of defendants probation required that he comply with his probation officers instructions, not change his residence without his probation officers permission, not possess any weapon or ammunition, abstain from possession or use of alcoholic beverages, and pay certain fines and fees. Defendants compliance with any or all of these conditions could be checked in a home visit from his probation officer.^[3] Unlike the situation presented in In re Taylor, there was no evidence here that the probation officers contact with defendant was specifically for the purpose of drug testing. (In re Taylor, supra, 105 Cal.App.4th at p. 1398 & fn. 7; see also People v. Dixon (2003) 113 Cal.App.4th 146, 148, 152 [general condition of probation requiring defendant to report to probation officer by mail was not drug-related]; cf. People v. Atwood, supra, 110 Cal.App.4th at pp. 810-813 [remanding to determine purpose of scheduled meeting with probation officer that defendant failed to attend].) Instead of answering his probation officers knock on the door, defendant ran away. We will not conclude on this record that defendants flight from a probation officer who attempted to visit him at home violated a drug-related condition of probation.

In light of our conclusion that defendants probation could be revoked for his attempt to flee, we will not consider whether his visits to a casino also violated a non-drug-related condition of probation. (See In re Taylor, supra, 105 Cal.App.4th at p. 1398 [the first time a probationer violates a non-drug-related condition of probation, the court has discretion to incarcerate him or her].)

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

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^[1] Proposition 36 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. (Pen. Code,  1210.1.) (People v. Floyd (2003) 31 Cal.4th 179, 183.)

^[2] While defendants opening brief claims that he fled his home in anticipation that he was to be given a drug-test by the probation officer, he cites no evidence to support that statement, and our review of the record has not disclosed any.

^[3] The amended notice also noted defendant was facing new felony charges, including felon in possession of a firearm.