Opinion
2d Crim. No. B230166
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. DENISE YVETTE GUNDERSON, Defendant and Appellant.
California Appellate Project, Jonathan B. Steiner and Richard B. Lennon under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2008025426)
(Ventura County)
Denise Yvette Gunderson contends the trial court erred in refusing to refer her for Proposition 36 probation. We affirm.
FACTS
In August 2008, Gunderson pled guilty to possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) The trial court suspended criminal proceedings and placed Gunderson on Deferred Entry of Judgement (DEJ) for 24 months. The DEJ was subject to a number of terms and conditions, including that she participate as directed in any treatment program designated by the probation officer and not use or possess controlled substances.
On August 6, 2009, Gunderson was arrested and admitted she had smoked methamphetamine. On September 13, 2010, the trial court found Gunderson violated the terms and conditions of her DEJ by being under the influence of methamphetamine, and failing to attend any classes required by the DEJ. Gunderson told the court she did not attend any classes because she could not afford them. She said that "at the time" they did not have a "financial program," but now they do.
The prosecutor asked that the court sentence Gunderson to 150 days in jail. The prosecutor opined that "most likely" Gunderson would be ineligible to participate in Proposition 36 treatment because she did not attend any classes under the DEJ. Defense counsel agreed it would not do any good to send Gunderson to Proposition 36 court, because the court would not let her into the program. The court agreed stating, "I think this woman accepts no responsibility for anything." The court imposed and stayed a 365-day jail term on the condition that Gunderson participate in a residential drug treatment program.
DISCUSSION
Gunderson contends the trial court erred when it failed to refer her for Proposition 36 probation.
This case is governed by People v. Friedeck (2010) 183 Cal.App.4th 892. There the defendant was ordered to attend a drug treatment program as a condition of DEJ. He failed to attend the treatment program. He claimed he lost his DEJ paperwork, and did not know where to go. We noted that Proposition 36, as codified in Penal Code section 1210.1, subdivision (b)(4), provides that Proposition 36 probation "shall not apply to '[a]ny defendant who refuses drug treatment as a condition of probation.'" (People v. Friedeck, supra, at pp. 895-896.) We determined that DEJ falls within the statutory definition of probation. (Id. at p. 897.) We concluded that a person who refuses drug treatment under DEJ is ineligible for Proposition 36 probation.
We also concluded in People v. Friedeck that whether a defendant has refused drug treatment is a question of fact for the trial court. (People v. Friedeck, supra, 183 Cal.App.4th at p. 897.) In making that determination, the trial court is not required to find the defendant's excuses credible. (Ibid.)
Here the trial court did not believe Gunderson's excuse. Her excuse was that she could not afford the drug treatment program. She said that "at the time" there was no financial assistance available, but now there is. She failed to state when financial assistance became available, or whether she bothered to apply for it. Nor does she state she attempted to work with her probation officer to find a solution to her problem. The trial court properly refused to refer Gunderson for Proposition 36 probation.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
COFFEE, J.
Allan L. Steele, Temporary Judge
(Retired Judge of the Ventura Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Superior Court County of Ventura
California Appellate Project, Jonathan B. Steiner and Richard B. Lennon under appointment by the Court of Appeal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.