P. v. Robertson

 

 

 

 

 

 

 

 

 

Filed 8/12/13  P. v. Robertson CA2/5

 

 

 

 

 

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JOHN ALLEN ROBERTSON,               Defendant and Appellant.

B242673         (Los Angeles County       Super. Ct. No. KA093781)

 

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Daniel S. Lopez, Judge. 
Affirmed.

            Jasmine
Patel, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

 

 

 

 

 

 

I.  INTRODUCTION

            After being
granted probation pursuant to Proposition 36, appellant failed to return to
court as ordered.  A bench warrant was
issued and the warrant remained outstanding for almost eight months.  Appellant ultimately appeared in court
because he was arrested on the warrant. 
He admitted he was in violation of probation for failing to return to
court as ordered.  The trial court found
appellant had made no progress in the Proposition 36 program and that his
absence from court demonstrated he was no longer a viable candidate for the
program.  Proposition 36 probation was
terminated and a state prison
sentence was imposed. 

            Appellant
contends the trial court erred by refusing to reinstate Proposition 36
probation.  We affirm the judgment
because appellant’s lengthy absence from court and his failure to enroll in a
drug treatment program supported the trial court’s decision.

 

II.  DISCUSSION

            “By its
terms, Proposition 36 requires the court to grant probation with a drug
treatment condition to any person convicted of a nonviolent drug possession
offense and prohibits incarceration as a condition of probation.”  (People
v. Davis (2003) 104 Cal.App.4th 1443, 1446.)  There are, however, five categories of
defendants who are statutorily ineligible for the program.  They include, those who “‘(1) have committed
serious or violent offenses within the last five years; (2) are convicted in
the same proceeding of a felony or misdemeanor not related to the use of drugs;
(3) possessed or were under the influence of a specified drug while using a firearm;
(4) refuse drug treatment as a condition of probation; or (5) have twice failed
drug treatment as a condition of probation and been found not to be amenable to
drug treatment.  ([Pen. Code,] §
1210.1.)’  [Citations.]”  (People
v. Guzman (2003) 109 Cal.App.4th 341, 347 (Guzman).)

            Appellant’s
supplemental probation report was considered by the trial court.  It indicated he there was no proof appellant
enrolled in a drug program and that appellant “made no effort to gain
compliance with a single condition of probation . . . .”   

            The trial
court’s comments are telling.  “Here we
are, . . . with no progress to speak of. 
I’m inclined to make findings under Guzman.  I don’t see [appellant] making a good faith
effort here.  [¶]  [¶] . . . You didn’t show up when you were
supposed to [be] back on September 14, 2011, and here we are.  May 21, 2012, we’re nowhere.  No progress whatsoever in [Proposition] 36. .
. .Time is up.”  Prior to imposing a
prison sentence, the trial court noted, appellant’s absence for over eight
months demonstrated he “[was] not amenable to any and all forms of drug
treatment,” and Proposition 36 was “no longer an option.”    

            The trial
court’s reliance on Guzman was
appropriate.  Guzman absconded after
being granted Proposition 36 probation. 
(Guzman, supra, 109
Cal.App.4th at p. 344.)  When he failed
to appear in court the following month, a bench warrant issued.  (Ibid.)  Approximately seven months later, he was
arrested on the warrant and admitted he was in violation of Proposition 36
probation.  (Ibid.)  The trial court
terminated the Proposition 36 program indicating it could “conclude that by his
actions, [Guzman] has refused to accept treatment and that he’s therefore, no
longer amenable to treatment under Proposition 36.”  (Id.
at p. 345.)

            In
rejecting an appellate claim that Guzman was entitled to reinstatement of
Proposition 36 probation, Division One of this District held the five
eligibility requirements (Pen. Code, § 1210.1) remain applicable even after the
initial grant of probation.  (>Guzman, supra, 109 Cal.App.4th at p.
350.)  Thus, “the trial court can
terminate the probation of a defendant who, by his conduct following the grant
of probation refuses to undergo drug treatment.”  (Ibid.)  Such conduct demonstrates the defendant is
ineligible for drug treatment under Proposition 36.  (Ibid.)

            We agree
with the analysis in Guzman and apply
it here.  Because there was substantial
evidence that appellant had a lengthy absence from the court with no progress
whatsoever in a treatment program, the trial court justifiably terminated
Proposition 36 probation and imposed sentence. 
As in Guzman, “[a]lthough the
trial court stated that defendant was ‘no longer amenable to treatment,’ for
all intents and purposes, it concluded that defendant was ineligible for drug
treatment under Proposition 36.  This
finding is unassailable.”  (>Guzman, supra, 109 Cal.App.4th at p.
350.)

 

III.  DISPOSITION

            The
judgment is affirmed.

 

                                                NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                KUMAR,
J. href="#_ftn1" name="_ftnref1" title="">^* 

           

We concur:

 

           

TURNER, P.J.                       

 

                       

KRIEGLER, J.