P. v. McNeese















Filed 5/22/13 P. v. McNeese CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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>

THIRD APPELLATE DISTRICT

> (Tehama)

----






>

THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARTIN MCNEESE II, Defendant and Appellant.

C070626 (Super. Ct. No. NCR77893)

This is
an appeal after remand for resentencing.
In People v. McNeese (Oct. 17, 2011, C065352) [nonpub.
opn.] (McNeese I), this court reversed
and remanded, concluding that the trial court had failed to exercise its
discretion and determine whether to return defendant to Proposition 36
probation for a non-drug-related probation violation. On remand, the trial court exercised its
discretion and sentenced defendant to state
prison.

Defendant
appeals, contending the trial court abused its discretion in sentencing him to
prison instead of returning him to Proposition 36 probation. We reject this contention. Defendant also contends that he is entitled
to additional presentence custody credit.
We agree with this contention and will order the judgment modified
accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

In
October 2009, a deputy sheriff stopped a pickup truck for lack of a current
registration sticker. The deputy
observed the driver, defendant Robert Martin McNeese II, bend over as if
he was hiding something under the seat.
With defendant’s consent, the deputy searched defendant and the truck
and found 0.8 grams of methamphetamine in defendant’s pocket and two glass
smoking pipes in the truck cab.
Defendant claimed the methamphetamine was for his personal use and that
he had been “clean” for seven weeks until the previous night.

Defendant
entered a plea of guilty to transportation of methamphetamine and admitted a
strike prior. The court granted
Proposition 36 probation. Defendant
violated probation by failing to appear at a scheduling appointment with the
community service officer. Defendant
admitted to the probation officer that it was his fault that he forgot “after
he lost the paperwork with the date of the appointment on it.” At sentencing, defense counsel stated that
the appointment had “slipped [defendant’s] mind and he just didn’t get it
done.” Further, defense counsel noted
that defendant had developed pneumonia and was being treated by a doctor. In McNeese
I, this court concluded that the violation was a non-drug-related violation
of probation but the trial court, in sentencing defendant to state prison for
six years, erroneously determined that defendant was no longer eligible for
Proposition 36 probation. In reversing
and remanding, this court concluded that the trial court had discretion to
reinstate defendant on Proposition 36 probation but expressed no opinion on
whether the trial court should do so.

A
different judge presided over sentencing on remand. The trial court stated that it had read the
prior sentencing transcript, McNeese I,
the original and supplemental probation reports, and defendant’s letters of
support. The probation report reflected
that, in addition to defendant’s felony conviction for lewd conduct with a
child under the age of 14 years in 1992, defendant was convicted of the
following misdemeanors: welfare fraud in
1988, for which he was granted three years’ probation; domestic violence in
2001; disturbing the peace in 2003, for which he was granted two years’
probation; battery in 2003; petty theft in 2005, for which he was granted 18
months’ probation; and exhibiting a deadly weapon in 2006. He violated parole in 1997. Defendant submitted two letters of reference
attesting to his honesty and hard work.
The court acknowledged that it had discretion to reinstate defendant on
Proposition 36 probation even for a non-drug-related violation of
probation. Defense counsel argued that
just as defendant had been excused from the drug treatment program based on his
doctor’s excuse, so should he have been excused from community service. The court found that defendant, having
previously been on probation, understood the terms and conditions of
Proposition 36 probation but failed to appear for his appointment to schedule
community service simply because he forgot.
The court also stated that it had considered defendant’s failure to
appear for the appointment in light of the probation reports. The court resentenced defendant to six years
in state prison, citing defendant’s
strike prior.

I. Denial of
Grant of Proposition 36 Probation

Defendant
contends the trial court abused its discretion in denying a grant of continued
Proposition 36 probation. Defendant
argues the trial court did so based solely upon defendant’s understanding of
the requirements of probation supervision.
Defendant asserts his probation violation (failure to sign up for
community service) was a trivial, nonwillful mistake and that probation should
have reminded him of the requirement.
During his prior appeal while in prison, he claims he recovered from the
effects of methamphetamine use and could now abide by the terms of
probation. Defendant argues, “The intent
behind the provisions of Proposition 36 to favor treatment over incarceration
should have informed the court’s discretion, but it did not.” Defendant renews his argument that he should
have been excused from community service based on his doctor’s note which
excused defendant from the drug treatment program. We conclude that the trial court did not
abuse its discretion in denying continued Proposition 36 probation and
sentencing defendant to state prison.

As stated
in McNeese I, “a defendant may be
excluded from the provisions of Proposition 36, and face incarceration as a
condition of probation, if his or her probation violation was not drug
related. [Citation.] ‘[A] defendant who has violated a
non-drug-related condition of probation loses the “grace” granted to
probationers otherwise subject to Proposition 36. [Citation.]
At that point, the defendant stands in the same shoes as any other
probationer and he is subject to whatever sentencing statutes bear on his
sentencing.’ [Citation.] The court then has the full range of options
otherwise available in a probation revocation proceeding, including imposing a
term of incarceration as a new condition of probation or lifting the stay on a
previously imposed term of incarceration.”
(Quoting People v. Dagostino (2004)
117 Cal.App.4th 974, 988.)

We will
not reverse a trial court’s order denying probation absent a showing that the
trial court’s decision was irrational or
arbitrary. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091; >People v. Sizemore (2009)
175 Cal.App.4th 864, 879.)

Defendant
argues that the trial court based its decision to deny probation solely upon
defendant’s understanding of the requirements of probation supervision. The trial court stated that it considered
defendant’s failure to appear at the scheduling appointment in light of the
probation report, which reflected, in addition to his strike prior, numerous
misdemeanor convictions and several grants of probation. The trial court correctly concluded that in
light of the report, defendant was no stranger to probation, needing no
reminders of the requirements. By failing
to appear at the scheduling appointment and admitting he lost the paperwork and
forgot, the trial court could properly conclude that defendant was not taking
his probation obligations seriously.
Although defense counsel raised the doctor’s note at the sentencing
hearing when defendant was first sentenced to state prison and again on remand,
defendant did not raise an illness excuse when he admitted the probation
violation. And defendant admitted to the
probation officer that he forgot after he lost the paperwork showing the
date. Defendant has failed to
demonstrate that the trial court abused its discretion.

II. Presentence
Custody Credits

Prior to
the original sentencing in this matter, defendant was in custody (county jail)
on October 17, 2009, and from November 9, 2009, to December 14, 2009, or 37
actual days. Based on defendant’s sex
offender registration requirement, the trial court awarded 15 percent conduct
credit, or five days, as recommended by the probation officer and as agreed to
by the prosecutor and defense counsel, for a total of 42 days of presentence
credit. Defendant contends that he is
entitled to additional presentence custody credit. We agree.

The
version of Penal Code section 4019 effective January 2010, which increased conduct
credit for most defendants but limited conduct credit for others including a
defendant required to register as a sex offender, is not retroactive.href="#_ftn1" name="_ftnref1" title="">[1] (People
v. Brown (2012) 54 Cal.4th 314, 318 [former § 4019, eff. Jan. 25,
2010, not retroactive].) Section 2933.1
limits presentence conduct credit to 15 percent for certain >current felony convictions. (§§ 2933.1, subds. (a), (c), 667, subd.
(c); In re Mitchell (2000)
81 Cal.App.4th 653, 656.)
Defendant’s current felony conviction for transportation of
methamphetamine does not limit his conduct credits to 15 percent. When defendant was in custody in 2009, he was
entitled to conduct credit based on the previous version of section 4019, which
calculated conduct credit as two days for every four days of custody. (Stats. 1982, ch. 1234, § 7,
pp. 4553-4554; People v. Smith (1989)
211 Cal.App.3d 523, 527.) Here,
defendant is entitled to 18 conduct days for a total of 55 days of presentence
custody credit.

Although
conceding that defendant is entitled to additional conduct credit, the People
argue that defendant is required to raise this issue in the trial court, not in
this court for the first time, citing section 1237.1. Section 1237.1 generally prohibits an appeal
challenging the calculation of presentence custody credits unless the defendant
has first filed a motion in the trial court.
This rule does not apply here because defendant has raised another issue
on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 427, 428, fn.
8.) We will order the judgment modified
to award the proper credit.

DISPOSITION

The
judgment is modified to award defendant 18 conduct days in addition to the 37
actual days, for a total of 55 days of presentence custody credit. The trial court is directed to prepare an
amended abstract of judgment accordingly, as well as to indicate defendant’s
days of custody in state prison in the appropriate box (item 12—“Time Served in
State Institution”), and to forward a certified copy of the amended abstract to
the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.





BUTZ , J.



We concur:





HULL , Acting P. J.





HOCH , J.