P. v. Turner

Filed 5/25/10 P. v. Turner CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed.

This is an appeal from a judgment committing David Bryan Turner to a three-year prison term after he admitted to a fourth violation of drug-related conditions of probation in Superior Court San Diego County, 2008, No. SCD209587 (case No. SCD209587) and a second probation violation in Superior Court San Diego County, 2008, No. SCD 211909 (case No. SCD211909) and the court terminated his probation under Proposition 36, the Substance Abuse Crime Prevention Act of 2000 (the Act).[1]

Turner contends that in case No. SCD209587, the trial court erroneously concluded he had four probation violations, when in fact he had only three; moreover, he was denied three notices of probation violations and three distinct probation periods; therefore, the trial court prematurely terminated his probation and sentenced him to prison. We affirm.

BACKGROUND

In October 2007, the People charged Turner with felony possession of a controlled substance (Health & Saf. Code, section 11377, subd. (a)) and misdemeanor possession of narcotic paraphernalia (Health & Saf. Code, section 11364) in case No. SCD209587. The People also alleged that Turner had two prior felony convictions, making him presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(4).

Later that month, Turner pleaded guilty to possession of methamphetamine in exchange for drug treatment under the Act, a dismissal of the rest of the complaint, and revocation and reinstatement of probation.

On February 20, 2008, in No. SCD211909,the People charged Turner with possession of a controlled substance (Health & Saf. Code, section 11377, subd. (a)) and resisting arrest ( 148, subd. (a)(1)), and alleged he had three prior convictions, thus being presumptively ineligible for probation. The information stated, "[T]he People are seeking a revocation of the defendant's probation, on any and all such probation grants, utilizing the same evidence, at the preliminary hearing. Defenses . . . should be considered and presented as appropriate at the preliminary hearing."

First Probation Violation in Case No. SCD209587

At a February 25, 2008 evidentiary hearing, Turner admitted a first probation violation in case No. SCD209587 for being discharged from a treatment program because of absences and having police contact about a week after being granted probation on November 6th, 2007. Accordingly, the trial court revoked probation.

During the proceedings, the court stated, "I've been handed a piece of paper that shows Mr. Turner [is] booked in [case No. SCD]211909." The court ruled, "Mr. Turner, what I'm doing is I'm sending this case to trail your new case. If they give you [drug treatment under the Act] on that, that should take care of both."

Second Probation Violation in Case No. SCD209587

At a March 3, 2008 hearing, before Turner pleaded guilty in case No. SCD211909 to possession of methamphetamine, the court warned him, "And your probation cases are going to get revoked; do you understand that that means I'm going to find that you violated probation because you didn't remain law-abiding. [] Do you understand that?" Turner responded that he understood. In exchange for his plea, he was ordered to drug treatment and the rest of the complaint was dismissed under the Act. Later in the same proceedings, Turner admitted he had violated his probation by failing to be law abiding; consequently, the court revoked probation and reinstated probation in case Nos. SCD211909 and SCD209587.

Third Probation Violation in Case No. SCD209587

At a March 28, 2008 hearing, Turner requested an evidentiary hearing regarding the Probation Department's allegations of his probation violations. The court stated, "Mr. Turner, the alleged violations of probation are that you failed to appear for orientation on March 6, 2008; that at orientation, on March 11, 2008, you refused to sign treatment forms to accept treatment to comply, basically, with the conditions that were requested by probation." The court warned Turner that if the allegations were found true, the court would find a first violation of probation in case No. SCD211909, and a third violation of probation in case No. SCD209587. The court set a date for an evidentiary hearing, summarily revoked probation in both matters, and allowed him to be released on his own recognizance, on condition that he attend three self-help meetings weekly.

At an April 18, 2008 evidentiary hearing, the trial court listed instances of Turner's failure to attend court-ordered meetings as part of his treatment.[2] The court told Turner, "And if you want to get the cases dismissed, you have [under the Act], you have to do treatment." The court also asked him, "Do you really want to do this program, that's going to require a lot of work, and it's going to require you making the program a priority? Or, would you rather that I just set the matters for sentencing?" and further, "Do you want one last shot at [the Act]? Based on Turner's affirmative response, the court ruled: "I do note that, at least, as to part of each violation, in [case No. SCD]209587, they were drug-related, so I think he would benefit from further treatment.[3] [] I'm not going to hold this third violation in abeyance. It will count as a third violation[;] however, the law does allow me to continue him in [treatment under the Act] or [section] 1210 once the court makes a finding that he would benefit from further treatment. I am going to find . . . that some of his previous violations appear to be drug-related, that he would benefit from further treatment[.] However, the record will reflect that Mr. Turner and I have had a discussion, and we've specifically talked about his efforts at treatment. And what that means is the court, in the future, may not be able to make the same finding that the court is making now, should he not engage in treatment." The court found a third probation violation in case No. SCD209587, and a first violation in case No. SCD211909, and in both matters revoked and reinstated probation.

At a June 30, 2008 hearing, the court found Turner was mentally competent to stand trial and reinstated criminal proceedings. It denied a request to release him on his own recognizance, and instead set bail, explaining, "I believe in a [Proposition 36] case the matters are set for bail because of significant concerns about reoffense pending treatment. And the court does not believe that there's been any change in circumstances to justify [release on one's own recognizance].

Fourth Probation Violation in Case No. SCD209587

At a July 11, 2008 hearing, the court told Turner, "It is my understanding that you want to give up your right to an evidentiary hearing as to each case; admit that you failed to appear at orientation for probation April 22nd; that you were discharged from the Stepping Stone program, May 19th; and that you failed or refused to test on May 22nd. Am I correct you want to give up your right to a hearing and admit those violations?" Turner answered in the affirmative. The court found a fourth probation violation in case No. SCD209587, and a second violation in case No. SCD211909. The court ruled in case No. SCD211909, "I'm going to go ahead and terminate [section] 1210, pursuant to People v. Johnson [(2003) 114 Cal.App.4th 284], and take judicial notice of the violations in [case No. SCD209587]." The court terminated probation in case No. SCD209587 based on the fourth probation violation.

On August 22, 2008, the court denied probation in case Nos. SCD209587 and SCD211909, and denied Turner's requests to suspend the prison sentence and for commitment to a drug treatment facility under Welfare and Institution's Code section 3051; instead, it sentenced Turner to a three-year prison term in each case, to be served concurrently.

DISCUSSION

Proposition 36

California voters passed Proposition 36 in the general election in November 2000. "By replacing incarceration with community-based treatment, Proposition 36 work[ed] a sea change in California's response to nonviolent drug possession offenses. In its prefatory statement, it states, 'the People of California hereby declare their purpose and intent in enacting this act to be as follows: (a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration and reincarceration of nonviolent drug users who would be better served by community-based treatment; and [] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies.' " (In re Taylor (2003) 105 Cal.App.4th 1394, 1397, quoting Proposition 36, 3 [Purposeand Intent section].)

"To achieve the fundamental objectives of Proposition 36, 'section 1210.1 places two important mandates on the trial court. First, assuming the defendant qualifies as a nonviolent drug offender eligible for drug treatment, the court must offer probation in lieu of a jail sentence. Second, and of even greater importance inattaining the objectives ofProposition 36, such probation must be conditioned on "participation in and completion of an appropriate drug treatment program." Thus, the ultimate objective of Proposition 36 is not to mandate probation in lieu of jail sentences. It is to substitute community-based drug treatment for jail sentences as a means of dissuading eligible offenders from continued drug use. As the voters were informed in the opening sentence of the ballot pamphlet summary, Proposition 36 "[r]equires probation and drug treatment," rather than incarceration, for simple drug possession offenses.' " (People v. Muldrow (2006) 144 Cal.App.4th 1038, 1045; see also 1210.1, subd. (a) ["any person convicted of a nonviolent drug possession offense shall receive probation"].)

Consequences Under Section 1210.1 for Drug-Related Probation Violations

"Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time." (In re Taylor, supra, 105 Cal.App.4th at p. 1397.) Under section 1210.1, the "first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others . [Citation.] The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. [Citation.] Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration. [Citation.] Upon such a violation, the court regains its discretion to impose jail or prison time." (Id. at pp. 1397-1398.)

Amendment to Proposition 36

Proposition 36 was amended by Senate Bill 1137 effective July 12, 2006. (Stats. 2006, ch. 63, 7, pp. 1083-1088.) Proposition 36 allows amendments by the Legislature if approved by a two-thirds vote and when such amendments are to "further the act" and are "consistent with its purposes." (Prop. 36, 9.) A group of plaintiffs challenged Senate Bill 1137 on constitutional grounds in Gardner v. Schwarzenegger, SuperiorCourtAlamedaCounty, 2006, No. RG06278911, alleging the Legislature violated article II, section 10(c) of the California Constitution, which forbids the Legislature from amending enactments made by voter initiative unless the amendments are consistent with the terms of the initiative itself. Plaintiffs alleged the incarceration provisions of Senate Bill 1137 were inconsistent with the purposes of Proposition 36 approved by the voters, as were the changes to those eligible for diversion under the initiative.

In September 2006, the trial court granted plaintiffs' request for a preliminary injunction, finding plaintiffs established a likelihood of success on the merits of their constitutional challenge to Senate Bill 1137. In May 2008, the court granted summary judgment for plaintiffs, concluding that Senate Bill 1137 violated article II, section 10(c) of the California Constitution because the new statutes were inconsistent with the purposes of the initiative enacted by the voters. The court of appeal affirmed in Gardner v. Schwarzenegger, SuperiorCourtAlamedaCounty (2010) 178 Cal.App.4th 1366 (Gardner). The California Supreme Court denied review in January 2010.

The Trial Court Had No Discretion Under Subdivision (e)(3)(C) of Section 1210.1 to Order Turner to Continue Drug Treatment or to Transfer Him to Drug Court

The People, in their respondent's brief submitted before the California Supreme Court declined to review Gardner,contend that Senate Bill 1137 is valid and was the applicable law. However, we agree with Gardnerthat the amendment was unconstitutional, and conclude the applicable law was the 2001 version of section 1210.1. (Accord, People v. Enriquez (2008) 160 Cal.App.4th 230, 240, fn. 2; People v. Hazle (2007) 157 Cal.App.4th 567, 577, fn. 1 (Hazle).

Turner conceded at oral argument that Gardner's holding disposed of his claims on appeal because he had acknowledged in his opening brief that in case No. SCD209587 he had violated probation three times, but not a fourth time as the trial court believed. He specifically contended, "At the time of [his] sentencing he had only three adjudicated violations, not four."

As we concluded in People v. Tanner (2005) 129 Cal.App.4th 223, 227, 234(Tanner), the plain language of section 1210.1, subdivision (e)(3)(C) limits the court's traditional discretion to continue or revoke probation once a third drug-related violation is proved. (Tanner , supra, at pp. 235-236.) Under that subdivision, the court has no discretion to continue Proposition 36 probation unless it finds (1) the defendant is not a danger to the community, and (2) the defendant would benefit from continued treatment. Only then, after the court makes such findings, may a court exercise its discretion to continue probation or transfer a defendant to drug court. ( 1210.1, subd. (e)(3)(C).)

Here, following the court's finding of a third probation violation, the court continued drug treatment for Turner, based on its finding he could benefit from it. But after the fourth probation violation, the court did not make that finding, and instead imposed prison terms. The court also denied Turner's requests to suspend the prison sentence and for commitment to a drug treatment facility under Welfare and Institution's Code section 3051.

In light of both the unambiguous language of section 1210.1, subdivision (e)(3)(C) and Turner's concession that at the time of sentencing he had three adjudicated probation violations, we conclude the trial court had no discretion to continue his probation or transfer him to drug court because it did not find he couldbenefit from drug treatment. For the same reason we reject Turner's contention that he was denied three notices of probation violations and three distinct probation periods.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

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[1] The Act is codified at Penal Code section 1210, 1210.1 and 3063 (all statutory references are to this code unless otherwise specified) and division 10.8 of the Health and Safety Code.

[2] The court stated, "[If] I want to keep Mr. Turner in [drug treatment under the Act], I need to make a finding that he continued to benefit from treatment. And part of my concern is when I go through the court file on that same case and I look at the client status report from Crash Tim Huddleston, it's not reflective of somebody who's interested in making an effort towards treatment. And the court says that because it says here: 'December 26, unexcused absence. January 2nd, unexcused absence. January 3rd, unexcused absence. January 8th, unexcused absence. January 9, unexcused absence.' [] About the only good thing I can say on that report dated January 10, [2008] is it doesn't list any positive tests for drugs, but it is evidence of somebody that's not necessarily interested in treatment. [] And I guess where I'm really struggling again is to somehow, Mr. Turner, say that you're interested in doing treatment, despite what I have in front of me, despite the fact that I ordered you to do three meetings a week. And it's been three weeks and I've got three meetings, not nine."

[3] Under the Act, a "drug-related condition of probation" is defined to "include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling." ( 1210.1, subd. (g).)