P. v. Martin

Filed 10/17/07 P. v. Martin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Thomas J. Rees, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Amanda F. Benedict, 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, Assistant Attorney General, Ana L. Duarte and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Laura Michele Martin appeals from the trial courts order revoking probation, terminating her participation in a drug treatment program pursuant to the Substance Abuse and Crime Prevention Act of 2000 (the Act),[1] and reinstating probation with the new condition she complete the Drug Court Program of the Orange County Superior Court. She contends the trial court abused its discretion by terminating her participation in the drug treatment program because her three probation violations precipitating the courts order were minor, and she was only four classes away from completing the drug treatment program.

We affirm. A trial court is no longer required under the Act to offer probation to a defendant who on three separate occasions has violated either (1) a non‑drug‑related condition of such probation, or (2) a drug-related condition of such probation. ( 1210.1, subd. (e)(2) & (3)(C); People v. Guzman (2005) 35 Cal.4th 577, 585.) Here, defendant admitted she violated probation by attempting to falsify a urine sample, failing to enroll in a drug treatment program mandated by the court, and failing to appear at a court hearing. Regardless of whether each of these probation violations is properly characterized as a violation of a non-drug-related or drug-related condition of probation under section 1210.1, subdivision (e), in light of the seriousness of defendants conduct of falsifying a urine sample, and her repeated failure to comply with the obligations imposed by probation, the record does not show the trial court abused its discretion by terminating her participation in the drug treatment program.

BACKGROUND

Defendant was charged in a felony complaint with (1) felony possession of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11377, subdivision (a), and (2) misdemeanor possession of controlled substance paraphernalia in violation of Health and Safety Code section 11364. In February 2006, defendant pleaded guilty as charged. The trial court suspended imposition of sentence, and placed defendant on three years formal probation on terms and conditions, including successful completion of a drug treatment program under section 1210.

In May 2006, the probation department filed a petition for arraignment on a probation violation, alleging defendant violated the terms of probation by [a]ttempt[ing] to falsify [a] urine sample. The petition stated [o]n May 24, 2006, the probationer attempted to submit a urine sample that would test negative for illegal drugs. The petition stated, [i]n view that the probationer had attempted to falsify a urine sample, she no longer qualifies for continuation for [Penal Code section] 1210. The petition further stated, it is respectfully recommended that the probationer be found in violation of probation, probation be revoked and reinstated with the added condition that [Penal Code section] 1210 be terminated, and order[ed] to serve 90 days in the Orange County Jail.

Defendant waived her right to a hearing and admitted the alleged probation violation. The trial court revoked defendants probation, and ordered probation reinstated on terms and conditions including that she enroll in KP Enterprises (a drug treatment program) and provide proof to court on 6/9/06. The court set a section 1210 monitoring review hearing for June 9, 2006.

On June 8, 2006, the probation department reported to the court that defendant failed to enroll in KP Enterprises and never scheduled an intake appointment. The probation department stated, [i]n view that the probationer has not re-enrolled in counseling within 24 hours of her referral, she no longer qualifies for continuation on [Penal Code section]1210. [] It is respectfully recommended that she be found in violation, probation revoked and reinstated, [Penal Code section] 1210 terminated, and serve 180 days in custody, as this is her second violation.

At the section 1210 monitoring review hearing on June 9, 2006, defendant waived her right to a hearing and admitted the alleged probation violation. The trial court revoked and reinstated probation on terms and conditions which included that defendant resume the drug treatment program under the Act, enroll in the KP Enterprises program, and provide proof to the court on June 23, 2006. The court set another section 1210 monitoring review hearing for June 23.

Defendant failed to appear at the section 1210 monitoring review hearing on June 23, 2006.[2] The trial court ordered defendants probation revoked, and ordered a bench warrant issued for defendant.

At a hearing on August 28, 2006, defendant admitted she failed to appear for the June 23 hearing and violated the terms and conditions of probation. The trial court (1) found defendant in violation of probation, but suspended imposition of sentence; (2) placed defendant on formal supervised probation for three years; (3) terminated defendants participation in the drug treatment program; and (4) reinstated probation on terms and conditions including that defendant [p]articipate and complete Drug Court for dismissal of charges and that the court will impose a 365-day jail sentence if defendant is terminated.

Defendant signed a drug court plea agreement which incorporated defendants agreement to participate in and complete drug court for the dismissal of charges and her acknowledgement that a 365-day jail sentence would be imposed if she were terminated from the program. The trial courts minute order states defendant accepted the terms and conditions of probation.

Defendant appealed.

DISCUSSION

Defendant contends the trial court abused its discretion by terminating her participation in the drug treatment program under the Act, and ordering her to complete the Drug Court Program. For the reasons discussed post, we disagree.

The Substance Abuse and Crime Prevention Act of 2000 (Act), which the voters of California enacted through Proposition 36, requires courts to order probation and community-based drug treatment rather than incarceration for certain criminal offenders who commit nonviolent drug possession offense[s] (NDPOs). (People v. Guzman, supra, 35 Cal.4th at p. 583.) [T]he Act provides that [n]otwithstanding any other provision of law and subject to specified exceptions, any person convicted of a nonviolent drug possession offense shall receive probation, and [a]s a condition of probation . . . shall [be] require[d] [to] participat[e] in and complet[e] . . . an appropriate drug treatment program. [Citation.] (Id. at p. 585.) Here, defendant was convicted of a nonviolent drug possession offense.

In the event a probationer violates probation by violating a drug-related condition of probation, the Act sets up a three-tier system for probation violations, with different rules and standards, depending on whether the violation is the first, second, or third violation of probation under Proposition 36. (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2007)  46.37, p. 1485.) Section 1210.1, subdivision (e)(3)(A) provides that the first time a defendant violates a 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 trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan.

The second time a defendant violates such probation by violating a drug-related condition of probation, and the state moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. . . . If the court does not revoke probation, it may intensify or alter the drug treatment plan. ( 1210.1, subd. (e)(3)(B).)

In the event a defendant violates probation a third time by violating a drug-related condition of probation, and the state again moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a). ( 1210.1, subd. (e)(3)(C); see People v. Guzman, supra, 35 Cal.4th at p. 585 [the Acts mandatory probation provision is inapplicable after a third violation of probation].)

Here, defendant admitted violating probation mandated under the Act on three separate occasions. After each violation, the probation department moved to revoke probation. The first two probation violationsdefendants falsification of a urine sample and failure to sign up for a drug treatment programconstituted violations of drug-related conditions of probation within the meaning of section 1210.1, subdivision (e)(3). In their appellate briefs, the parties assume, without analysis, that defendants third probation violation similarly constitutes a violation of a drug-related condition of probation. The Act does not define non-drug-related condition of probation or drug-related condition of probation, except that section 1210.1, subdivision (f) provides [t]he term drug-related condition of probation shall include a probationers specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.

Defendants third probation violationher failure to appear for a Penal Code [section] 1210 Monitoring Review hearingmay very well be considered a drug-related condition of probation. As such, defendants third probation violation would also constitute her third violation of a drug-related condition of probation, thereby rendering her ineligible for mandatory probation under the Act. (People v. Davis, supra, 104 Cal.App.4th at pp. 1447-1448 [after three violations of a drug-related condition of probation a defendant lose[s] the protection of . . . section 1210.1, subdivision (a) which requires participation in a drug treatment program and prohibits incarceration as a condition of probation].)

Even if defendants third probation violation is properly characterized as a violation of a non-drug-related condition of probation, section 1210.1, subdivision (e)(2) provides that a single violation of a non-drug-related condition of probation can support a determination to cancel continued probation under the Act.[3] (People v. Guzman, supra, 35 Cal.4th at p. 585 [Act does not require trial court to place a probationer back on probation if probationer violates a single non-drug-related condition of probation].) Therefore, whether defendants third probation violation is properly classified as a violation of a drug-related condition of probation or a non-drug-related condition of probation, the result is the samedefendant was no longer entitled to continued mandatory probation under the Act.

Defendant contends the trial court abused its discretion by failing to reinstate its order requiring her participation in the drug treatment program under the Act because her three probation violations were minor and she was only four classes away from completing that program. As observed by the trial court at a hearing following defendants third probation violation, defendants first violation was attempting to submit a urine sample that would test negative for illegal drugs. The court explained to defendant that she could not stay in a Proposition 36 program when you submit a test when you were trying to cheat. How do we know youve been sober at all[?] In light of the seriousness of the first probation violation, and the repeated failure by defendant to comply with the obligations imposed by her probation, the record does not show the trial court abused its discretion by terminating defendants participation in the drug treatment program.

Citing language adopted by the California Legislature during the 2005-2006 regular session, which significantly amended section 1210.1, including subdivision (e)(2) and (3), defendant argues that upon a third probation violation the court had authority to continue [defendant] in Proposition 36 treatment so long as [defendant] was not a danger to the community and she would benefit from continued treatment.[4]

Although the Legislature adopted amendments to section 1210.1 in 2006, which was signed into law and effective July 12, 2006, a preliminary injunction issued on September 15, 2006, blocking the legislation from taking effect pending resolution of a constitutional challenge mounted against the legislation. (Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06278911); see Cal. Criminal Law: Procedure and Practice, supra, 46.36, p. 1484.) As the preliminary injunction remains in effect, the pre-2006 amendment version of section 1210.1 applies to this case.

DISPOSITION

The order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P.J.

BEDSWORTH, J.

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[1] The provisions of the Act are codified in Penal Code sections 1210, 1210.1 and 3063.1, and division 10.8 of the Health and Safety Code, commencing with section 11999.4. (People v. Davis (2003) 104 Cal.App.4th 1443, 1446.) (All further statutory references are to the Penal Code unless otherwise specified.)

[2] The minute order from the June 23, 2006 hearing states, Defendant present in Court with counsel April Gilbert, Public Defender. The reporters transcript does not contain a transcription of the June 23 hearing. The parties appear to agree the minute orders reference to defendants presence was a typographical error, as they each state in their respective appellate briefs that defendant was not present at the June 23 hearing, which triggered the issuance of a bench warrant for defendant.

[3] Section 1210.1, subdivision (e)(2) provides, [i]f a defendant receives probation under subdivision (a), 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.

[4] As amended, section 1210.1, subdivision (f)(3)(C) would provide that upon a third violation of a drug-related condition of probation, the defendant is not eligible for continued probation under subdivision (a) unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions as the court deems appropriate. As amended, section 1210.1, subdivision (f)(2) would provide that upon a violation of a non-drug-related condition of probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section.