Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR902070, CR903808
GEMELLO, J.
Jason Elliot Butcher was sentenced to five years eight months in prison after pleading guilty to several nonviolent drug possession offenses while on probation for non-drug offenses in other counties. He argues the trial court erred by not granting him Proposition 36 probation for the drug offenses. He acknowledges that his assignment of Blakely error to the trial court’s imposition of the upper term is foreclosed by People v. Black (2007) 41 Cal.4th 799. We affirm.
BACKGROUND
On August 11, 2004, a Clearlake (Lake County) police officer found pills and a hypodermic syringe in Butcher’s car following a traffic stop (CR 903808). On October 23, 2004, a Clearlake police officer observed Butcher sitting in a van showing signs of being under the influence of a controlled substance. Officers discovered heroin in Butcher’s pocket and two hypodermic syringes and a digital scale containing methamphetamine in the van (CR 902070).
In December 2004, Butcher was arrested in Napa (Napa County). In March 2005, he was convicted of misdemeanor attempted grand theft and misdemeanor trespassing. He was placed on three years’ formal probation and ordered to serve 90 days in jail.
In January and April 2005, Butcher was arrested in two incidents in Clearlake for misdemeanor possession of hypodermic needles and syringes (CR904398, CR905804).
In April and May 2006, preliminary hearings were held on the charges arising from the August 11 and October 23, 2004 incidents. On June 1, 2006, informations were filed in each case. In case number CR903808, Butcher was charged with felony possession of Oxycontin (Health & Saf. Code, § 11350, subd. (a); count 1); felony possession of methadone (Health & Saf. Code, § 11350, subd. (a); count 2); and misdemeanor possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140; count 3). It was alleged that he served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). In case number CR902070, he was charged with felony possession of heroin (Health & Saf. Code, § 11350, subd. (a); count 1); misdemeanor possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140; count 2); and misdemeanor use and being under the influence of heroin (Health & Saf. Code, § 11550, subd. (a); count 3). As to count 1, it was alleged he was presumptively ineligible for probation under section 1203, subd. (e)(4), and that he served two prior prison terms within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise indicated.
On June 3, 2006, Butcher was a passenger in a van that was stopped for suspicious activity in Colusa (Colusa County). Police officers found $896 worth of stolen aluminum pipe in the van. In July 2006, Lake County probation reported that Butcher was arrested in the Colusa County incident and charges were pending. The probation report identifies the Colusa County charge as felony grand theft (§ 487) and under the column heading “Disposition” states, “7/25/06, scheduled for plea or set.”
On July 3, 2006, Butcher pled guilty and admitted the allegations in his four pending Lake County cases: the misdemeanor cases arising from the January and April 2005 incidents (CR904398 and CR905804) and the cases at issue in this appeal arising from the August and October 2004 incidents, CR902070 and CR903808.
Sometime in July 2006, Butcher was charged with a violation of his probation in the Napa County case that arose from the December 2004 incident. The violation apparently was based on the Colusa County incident. According to the July 26, 2006 Lake County probation report, Butcher was then in custody in Napa County and a probation violation hearing was scheduled for August 14, 2006.
The July 26, 2006 Lake County probation report stated Butcher was ineligible for Proposition 36 probation in his Lake County case. “The defendant is currently in custody in Napa County attending court for an unrelated matter. The defendant is not in custody for any Lake County matters. . . . The defendant’s potential eligibility to probation pursuant to PC 1210.1 depends on the amount of jail time the defendant is serving for any others at the time of sentencing. This is currently unknown. . . . As of the date of preparation of this report, the defendant is not eligible to probation pursuant to PC 1210.1 as he is in custody for unrelated matters.”
At the August 7, 2006 sentencing hearing, defense counsel requested a continuance to consult with his client because he was serving a 120-day sentence in Napa County and had just been transported to Lake County for the hearing. The court denied the continuance. When the court asked for argument on Butcher’s request for probation, defense counsel said “this had been a Prop. 36 case” until Butcher was charged with the probation violation in Napa. Due to “his pending sentence in Napa, he’s ineligible for Prop. 36. But given his history of drug addiction, I’d ask the Court to consider placing him on probation with a condition that he go into a residential treatment program.”
The court denied probation under section 1203, subdivision (e)(4) and rules 4.413 and 4.414. The court sentenced Butcher to state prison for the total determinate term of five years eight months.
DISCUSSION
I. Proposition 36 Eligibility
Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug offense. (§ 1210.1, subd. (a); People v. Esparza (2003) 107 Cal.App.4th 691, 693.) The law sets forth five statutory exceptions to eligibility, none of which applies to Butcher. (§ 1210.1, subd. (b).) Courts have recognized nonstatutory exceptions to eligibility, including incarceration or impending deportation. (Esparza, at p. 699; People v. Espinoza (2003) 107 Cal.App.4th 1069, 1076.) In both circumstances, defendants are ineligible because they are unable to comply with a mandatory condition of Proposition 36 probation: prompt enrollment in an out-of-custody drug treatment program. (§§ 1210, subd. (b); 1210.1, subd. (d).) In People v. Muldrow, the court held that a mere expectation that a defendant will be incarcerated on a parole hold was not a sufficient ground for concluding he was ineligible for Proposition 36 probation. (See People v. Muldrow (2006) 144 Cal.App.4th 1038, 1047-1048.) In Espinoza, however, the court held that a substantial likelihood of deportation was sufficient to deem the defendant ineligible for Proposition 36 probation. (Espinoza, at p. 1075 & fn. 5.)
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, is codified at sections 1210, 1210.1 and 3063.1 and Health and Safety Code division 10.8 (commencing with section 11999.4). (People v. Superior Court (Edwards) (2007) 146 Cal.App.4th 518, 520.)
In the circumstances of Butcher’s sentencing hearing, the court did not err by not placing Butcher on Proposition 36 probation. The court reasonably accepted defense counsel’s representation that Butcher was ineligible for Proposition 36 due to his incarceration in another criminal matter. Butcher had been transported to the Lake County sentencing hearing in custody. Butcher’s attorney told the court he was currently serving a 120-day sentence in Napa County. Counsel said that due to Butcher’s “pending sentence in Napa, he’s ineligible for Prop. 36.” The July 26, 2006 Lake County probation report also concluded that Butcher was ineligible for Proposition 36 probation “as he is in custody on unrelated matters.” Probation reported that Butcher had been charged with a violation of probation in Napa County; he was then in custody in Napa County; and a Napa County probation violation hearing was scheduled for August 14. Probation also reported that Butcher had been arrested in Colusa County for grand theft, where charges were “pending.” Faced with these representations, the court reasonably reviewed Butcher’s request for probation under section 1203 rather than Proposition 36.
Butcher argues the People had the burden of proving he was ineligible for Proposition 36 probation due to incarceration and failed to meet this burden. He argues it was pure speculation that he would face incarceration in the Colusa case and that it was unclear from the probation report how much more time he had to serve in Napa County. At the sentencing hearing, however, Butcher’s attorney affirmatively represented that he was serving a 120-day sentence in Napa County and that he was ineligible for probation due to his incarceration. This statement was corroborated by the probation report, which stated he faced a probation violation hearing in Napa County and theft charges in Colusa County. These representations provided sufficient evidence for the trial court to conclude Butcher was ineligible for Proposition 36 probation.
Butcher argues that Proposition 36 treatment is not subject to forfeiture due to a defendant’s failure to object, but Butcher did not merely fail to object to the denial of Proposition 36 treatment at the hearing. (People v. Esparza, supra, 107 Cal.App.4th at p. 699.) He affirmatively conceded his ineligibility, a concession the trial court reasonably accepted. (Cf. In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501-502 [party estopped from changing his position on appeal, particularly where factual record for new position was not developed below].) There was no error.
II. Upper Term Sentencing
In his opening brief, Butcher argued that the imposition of an upper term sentence based on findings neither admitted by the defendant nor found true beyond a reasonable doubt by a jury violated his Sixth Amendment rights. (See Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].) In his reply brief, he concedes that his argument lacks merit under the California Supreme Court’s intervening decision in People v. Black (2007) 41 Cal.4th 799, which this court is bound to follow.
DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P.J., NEEDHAM, J.