People v. Hoisington

Full title: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. HOISINGTON, Defendant…

Court: California Court of Appeals, First District, First Division

Date published: Nov 8, 2007

No. A115807 (Cal. Ct. App. Nov. 8, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. HOISINGTON, Defendant and Appellant. A115807 California Court of Appeal, First District, First Division November 8, 2007

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Lake County Super. Ct. No. CR908205

ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT

Stein, Acting P. J.

It is ordered that the opinion filed herein on October 19, 2007, be modified as follows:

1. A new paragraph is inserted following the last full paragraph on page 5, ending with the words “meeting itself was drug-related.” The new paragraph reads:

“Defendant relies, in part, on Dagostino, supra, 117 Cal.App.4th 974, where the appellate court concluded a referral by the defendant’s probation officer to a mental health “gatekeeper” was a drug-related condition of probation. (Id. at p. 996.) The gatekeeper’s role was to assess the defendant’s mental health and to refer him to the appropriate department for any psychiatric problem. (Id. at pp. 982, 993.) The gatekeeper also was the person who would refer the defendant to an appropriate drug treatment program. (Id. at p. 992-993.) The Court of Appeal took note of the “entirety of the record,” which strongly indicated the defendant’s failure to meet with the mental health gatekeeper was a violation of a drug-related condition of probation. It stated, among other things, that “[s]ince a person cannot be placed in the appropriate drug treatment program without being evaluated, it follows that a drug treatment regimen includes the initial evaluation, and appearing or failing to appear for that evaluation ‘thus satisfies the definition of a drug-related condition of probation.’ [Citation.]” (Id. at p. 993.) Despite this language, we doubt the court was of the opinion that any and every meeting or other step that had to take place before the defendant might obtain a drug treatment referral would be a drug-related condition of probation. In any event, Dagostino is distinguishable because the “entirety of the record” there, unlike the record here, indicated that the focus of the defendant’s probation was and would be to secure mental health treatment and drug treatment for him.”

2. The first sentence of the paragraph following the newly inserted paragraph is modified to read:

“In contrast, here, as in Johnson, supra, 114 Cal.App.4th 284, defendant’s criminal history was not limited to nonviolent drug possession offenses.”

There is no change in judgment. Defendant’s petition for rehearing is denied.