Opinion
NOT TO BE PUBLISHED.
Monterey County Super. Ct. No. SS033100.
RUSHING, P.J.
Statement of the Case
The Monterey County District Attorney filed a complaint charging defendant Frederick Jefferson with possession of cocaine base and possession of drug paraphernalia. (Health & Saf. Code, §§ 11350, 11364.) The complaint also alleged that defendant had a prior strike conviction and was ineligible for probation because of three prior drug convictions. Defendant pleaded guilty to drug possession and admitted the strike. He was then placed on probation for drug treatment under the provisions of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act). (Pen. Code, §1210 et seq.)
The Act “ ‘mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance. Its provisions outline “an alternative sentencing scheme” for persons convicted of certain drug offenses. [Citation.] “In effect, it acts as an exception to the punishment” provided for certain offenses involving controlled substances. [Citation.]’ [Citation.]” (People v. Guzman (2005) 35 Cal.4th 577, 585.)
The district attorney later filed three petitions to revoke defendant’s probation. Defendant admitted alleged probation violations in two of the petitions: failuring to enroll in a treatment program and testing positive for drug use. The third petition alleged that defendant had been arrested for a drug offense. After a contested hearing, the court found that defendant had committed the violation. Thereafter, the court dismissed the prior strike conviction and imposed a two-year term for the underlying offense. The court also imposed various fines and fees.
On appeal from the judgment, defendant claims that when he pleaded guilty, the trial court lacked subject matter jurisdiction. He further claims that the court erred in treating him as a three-time probation violator. He also claims that he is entitled to a new sentencing hearing under an amendment to the Act. Last, he claims a restitution fine and laboratory fee must be reduced to the amounts imposed by the court at the initial sentencing hearing.
We reverse and remand for resentencing.
The Underlying Offense
On October 11, 2003, Officer Nicholas Borges of the Seaside Police Department arrested defendant on an outstanding traffic arrest warrant. Officer Borges searched defendant and found some cocaine base and a crack pipe.
The Contested Probation Violation
On June 20, 2005, Officer John Conway of the San Francisco Police Department observed defendant at the corner of Jones and Golden Gate Streets—aka “[P]ill [C]orner”—in San Francisco, a place where prescription drugs are bought and sold. Defendant was holding and looking at a pill bottle. When defendant realized he was being watched, he quickly put the bottle into his pocket and walked away.
Officer Conway detained defendant, learned he was on probation with a search condition, and searched him. He found two pill bottles. One contained 20 Vicodin pills, and the other contained six morphine pills. Defendant also had a crack pipe. Defendant established that he had a prescription for only the morphine pills.
Failure to File an Information
Defendant contends that because the district attorney failed to file an information charging the underlying felony offense, the trial court lacked jurisdiction over the case. Thus, he claims the judgment must be reversed.
On October 17, the district attorney filed a complaint. After a preliminary hearing on December 31, 2003, the court held defendant to answer. At that time, the parties stipulated, and the court agreed, that the complaint would “be the charging document”—i.e., the information. Thereafter, defendant pleaded guilty.
Article I, section 14 of the California Constitution provides that a felony “shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.” (See §§ 682 [felony must be prosecuted by information or indictment]; 739 [district attorney’s duty to file an information].)
In People v. Smith (1986) 187 Cal.App.3d 1222 (Smith), the district attorney filed a complaint against the defendant in municipal court before the unification of municipal and superior courts. Later, at the arraignment in superior court, the court observed that the district attorney had not filed an information. Nevertheless, the matter proceeded, and the defendant pleaded guilty. (Id., at p. 1224.) On appeal, the court reversed. The court explained, “Timely filing of the valid information gives the superior court jurisdiction to try an accused. [Citation.] Failure to file an information is an irregularity of sufficient importance to the functioning of the courts that the parties cannot cure the irregularity by their consent to the proceedings. [Citation.] The superior court did not have jurisdiction to accept appellant’s guilty plea or to enter judgment against him.” (Id. at pp. 1224-1225.)
Smith is distinguishable. Here, before the matter proceeded, the parties formally stipulated that the complaint, which had been filed, would constitute the information for purposes of further prosecution.
That is essentially what happened in People v. Cartwright (1995) 39 Cal.App.4th 1123 (Cartwright), a case that arose after unification of the courts. There, a superior court judge acting as magistrate held the defendant to answer and then deemed the complaint to be the information. On appeal, the court distinguished Smith, pointing out that in Smith no accusatory pleading had ever been filed in the court where the defendant was arraigned, and the parties had attempted to cure that error after the fact. However, in Cartwright, an information was filed in the court where the defendant was to be arraigned because the judge had accepted the document then on file as the information. (Id. at p. 1132.)
The circumstances here are more compelling than those in Cartwright because the parties expressly stipulated that the complaint would be treated as the requisite information.
Defendant argues that Cartwright was wrongly decided and further claims that the parties cannot confer fundamental jurisdiction on a court by stipulation or consent. However, as the Attorney General correctly points out, the parties did not stipulate to jurisdiction. Rather, they stipulated to use the complaint on file as the information, that is, they stipulated to a factual and documentary matter. They did not stipulate to jurisdiction.
Three Probation Violations
Defendant contends that the trial court erred when, at sentencing, it treated him as if he were a three-time probation violator and revoked probation.
Background
On December 7, 2004, the Monterey County Probation Department (Department) filed a petition to revoke defendant’s probation, alleging that on October 7, 2004, defendant violated probation by failing to attend his intake appointment for drug treatment. Defendant admitted the violation, and on December 15, the court revoked and then reinstated probation. (§ 1210.1, subd. (f)(3)(A).)
On June 24, 2005, the Department filed a second petition, alleging that on June 9, defendant had tested positive for cocaine and on June 17, had failed to report. A revocation hearing was scheduled for July 6, but on that day, defendant failed to appear. On August 23, the Department filed a third petition, alleging that on June 20, defendant had been arrested for drug offenses. A hearing was scheduled for September 7. The court issued a bench warrant on August 30. On September 7, defendant failed to appear, and the court summarily revoked probation.
Defendant was arrested on April 19, 2006. On April 20, defendant appeared and denied the allegations in the second petition. However, at a subsequent hearing on June 7, defendant admitted that he had tested positive for cocaine as alleged in the second petition. On July 26, the court held a contested hearing on the third petition and found that defendant had been arrested as alleged. At sentencing on September 28, the court revoked probation and imposed a two-year prison term. (§ 1210.1, subd. (f)(3)(C).)
Discussion
Defendant asserts that the Act mandates that a probationer be given three chances on probation before probation may be revoked. He notes he was initially placed on probation. He violated probation and it was reinstated after he admitted the violation alleged in the first petition. Later, he admitted a violation alleged in the second petition. However, defendant complains that “he was not given a sentencing hearing on the petition, ” at which presumably he would have been reinstated on probation for a second time, giving him a third chance on probation. Instead, the court immediately held a hearing on the third petition and then revoked probation under provisions of the Act applicable to three-time violators. Defendant argues that even after the hearing on the third petition, he was still entitled to another chance on probation.
In People v. Dagostino (2004) 117 Cal.App.4th 974, 987, the court explained that under the Act, “a defendant convicted of a nonviolent drug possession offense is generally placed on probation, instead of being sentenced to state prison or county jail, on condition of completing a drug treatment program. [Citation.] The court may not impose incarceration as a condition of probation. Instead, the court may require, as additional conditions of probation, defendant’s ‘participation in vocational training, family counseling, literacy training and/or community service.’ [Citations.] If the defendant successfully completes drug treatment and probation, the conviction is set aside, the information or indictment is dismissed, and for most purposes, the arrest is deemed not to have occurred. [Citations.]”
The court further explained that “[a] defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme. [Citations.]” (People v. Dagostino, supra, 117 Cal.App.4th at p. 987.) Moreover, “ ‘[a]nticipating 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.’ ” (Ibid.)
The Act provides that if a defendant on probation under the Act violates a drug-related condition of probation for the first time, and the state moves to revoke probation, the court must conduct a hearing and may revoke probation only if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. (§1210.1, subd. (f)(3)(A).) Absent such a finding, the court must reinstate probation. (Ibid.) If the probationer violates a drug-related condition a second time, and the state moves to revoke probation, the court may revoke probation only “if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment.” (§1210.1, subd. (f)(3)(B).) Absent such a finding, the court must reinstate probation. (Ibid.) And if the probationer violates a drug-related condition for a third time, and the state moves to revoke probation, the court must revoke probation “unless the court determines that the defendant is not a danger to the community and would benefit from further treatment . . . .” (§1210.1, subd. (f)(3)(C).)
Section 1210.1, subdivision (f) provides, in relevant part, “(3)(A) If a defendant receives probation under subdivision (a), and violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. . . . [¶] (B) If a defendant receives probation under subdivision (a), and for the second time violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. . . . [¶] (C) If a defendant receives probation under subdivision (a), and for the third or subsequent time violates that probation either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a) unless the court determines that the defendant is not a danger to the community and would benefit from further treatment . . . .”
Here, defendant was separately charged with three drug-related probation violations. After defendant admitted the first violation, the court reinstated probation. The hearing on the second petition did not take place as scheduled because defendant failed to appear. Thereafter, a third petition was filed. At a later hearing, defendant admitted one of the alleged violations in the second petition. At a contested hearing on the third petition, the court found a third violation and revoked probation.
As noted, defendant complains that he was not given a separate sentencing hearing on the second petition.
In People v. Budwiser (2006) 140 Cal.App.4th 105 (Budwiser), the court held that a court may hold a single hearing on multiple petitions. There, the trial court conducted one hearing on three petitions, the last two of which were filed only three days apart. The court dismissed the first petition but found the allegations in the second and third petitions to be true and revoked probation under the provision applicable to a two-time violator, finding that “ ‘defendant poses a danger to the safety of others or is unamenable to drug treatment.’ ” (Id., at p. 107; see § 1210.1, subd. (f)(3)(B).)
On appeal, the defendant claimed that holding a single hearing on two petitions violated his rights under the Act. In rejecting this claim, the court explained, “Contrary to defendant’s argument, subdivisions [(e)(3)](A) and (B) [of section 1210.1] do not require separate hearings. The event triggering revocation for each subdivision is the separate motion to revoke probation filed by the People. Although each subdivision requires ‘a hearing to determine whether probation shall be revoked, ’ nothing in the statute requires that the hearings be separate. What is important under subdivisions (A) and (B) is that the defendant has committed separate violations of probation (indicating his unamenability to treatment), resulting in separate motions (petitions) to revoke, not whether the violations are adjudicated in separate hearings. Moreover, it would be an absurd waste of judicial resources to construe the statutes so as to require a separate hearing for each motion to revoke probation. We must give the statute a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.]” (Budwiser, supra, 140 Cal.App.4th at p. 109, italics added.)
After Budwiser was decided, the Legislature amended the Act, and, among other things, moved the provisions of former section 1210.1, subdivisions (e) to subdivision (f). (See Stats. 2006, ch. 63.) Prior to the amendment, if the state moved for the third time to revoke probation and the court found a probation violation, the probationer was ineligible for probation again. (Former § 1210.1, subd. (d)(3)(C).) However, under the amendment, the court has discretion to reinstate probation a third time. (§ 1210.1, subd. (f)(3)(C).) For the purpose of our discussion in this section, the statutory change is not relevant.
We agree with Budwiser and reject defendant’s complaint that he was deprived of a separate sentencing hearing on the second petition.
In his reply brief, defendant asserts that Budwiser is inapposite and does not address his claim. He says he is not contending that each petition requires a separate sentencing hearing; rather, he is claiming that absent findings that he poses a danger or is not amenable to further treatment, the Act mandates that he be given three separate chances to succeed on probation before probation may be revoked: (1) the initial grant of probation, (2) reinstatement after the first violation, and (3) reinstatement after the second violation. Only after he fails a second reinstatement may the court revoke probation. Thus, although under Budwiser, the court may hold one hearing on multiple petitions, the court must still comply with the Act’s mandate and give a probationer the requisite number of chances on probation regardless of how many petitions are filed and violations are found. For example, if the court holds one hearing on a first and second petition and the allegations in both are found true—essentially what happened in Budwiser—then the court must treat the probationer as a one-time violator under section 1210.1, subdivision (f)(3)(A) and reinstate probation; similarly, if there is one hearing on a second and third petition, then the court must treat the probationer as a two-time violator under section 1210.1, subdivision (f)(3)(B) and reinstate probation. Thus, defendant argues that “[s]ince [he] was never given this third chance, reversal is required and a hearing must be conducted as if [he] has suffered only two violations of probation.”
Obviously, defendant’s position is inconsistent with Budwiser, where the court held one hearing on two petitions and treated the probationer as a two-time, rather than a one-time, violator. We further point out that the Act does not expressly require that a defendant be reinstated to probation twice before the more restrictive provisions for a three-time violator become applicable. Nor does the statutory language reasonably imply that it is the number of times that defendant has been reinstated on probation that determines the court’s sentencing options. Rather, as Budwiser points out and the express and unambiguous language of the Act makes clear, what determines the court’s sentencing options is the number petitions and the number of alleged violations in each that are found true.
Defendant’s reliance on People v. Tanner (2005) 129 Cal.App.4th 223 (Tanner) is misplaced.
In Tanner, two petitions to revoke probation were filed, and the probationer admitted the four violations alleged in them. Thereafter, the court revoked probation because of the four violations. (Tanner, supra, 129 Cal.App.4th at pp. 227-231.) On appeal, the defendant claimed it was error to revoke probation based solely on the number of probation violations. He argued that it was not the number of violation that controlled a court’s sentencing options. (Id. at pp. 234-235.) The appellate court agreed, finding that the plain meaning of the statutory language required three motions to revoke before probation could be revoked. The court “believe[d] that consistent with the purpose of the Act, the trial court has authority to consider the matters before it by the state and to revoke probation under the Act after it has been moved three separate times for violations of drug-related conditions of probation and those are proved or admitted at three hearings.” (Id. at p. 236.) Accordingly, the court held that the trial court had prematurely revoked probation after only two motions by the state and two hearings. (Id. at p. 237.)
Here, the procedure complied with the holding in Tanner. The Department filed three separate petitions on three different dates, and the allegations in each were either admitted or found true at three separate hearings.
Defendant relies on a passage from Tanner, where the court explained that requiring three motions to revoke “comports with the apparent purpose and intention behind Proposition 36 to give two chances to nonviolent drug offenders who commit additional nonviolent drug possession offenses or violate drug-related probation conditions to reform before they are no longer eligible for probation under the Act.” (Tanner, supra, 129 Cal.App.4th at p. 236, italics added; see former § 1210.1, subds. (e)(3)(A), (B) & (C).)
In explaining the apparent purpose and intent of the Act, the Tanner court was not interpreting the statute to require a certain number of reinstatements on probation or otherwise changing its holding that it is the number of petitions and probation violations that determine the court’s sentencing options. Rather, the court’s explanation simply reflects the fact that a probationer can be reinstated on probation twice before the court’s discretion to do so is substantially limited by a third petition and probation violation. Moreover, although the Act contemplates that a probationer could be reinstated on probation twice based on two petitions and two violations, the statutory language does not mandate two reinstatements to probation regardless of the number of petitions and violation.
In this case, it became procedurally impossible for the court to hold a second hearing on the second petition before the third petition was filed because defendant failed to appear at the scheduled hearing on the second petition and was not arrested until after the third petition had been filed. Thereafter, it would have been pointless to hold a separate hearing on the second petition and formally reinstate defendant on probation for a second time because the third petition had already been filed, and a hearing was scheduled.
Defendant claims that the second and third petition should have been treated as a single petition because the violations alleged in each occurred only eleven days apart—i.e., June 9 and June 20, 2005. However, defendant cites no authority for the proposition that the Department was required to amend the second petition rather than file a third petition. Indeed, in Budwiser, supra, 140 Cal.App.4th 105, the two petitions were filed three days apart and alleged violations that occurred six days apart. Thus, the mere temporal proximity of the violations in the second and third petitions does not lead us to conclude that the court was required to treat him as a two-time violator.
We do not suggest that state may circumvent the provisions of section 1210.1, subdivisions (f)(3)(A) and (B) and trigger the provisions of section 1210.1, subdivision (f)(3)(C) by simultaneously filing three separate petitions, each alleging a single violation. Here, however, the petitions were filed months apart. Moreover, there is no evidence that the Department was aware of the June 20 probation violation when it filed the second petition on June 24 or that the Department filed a third petition for the purpose circumventing a possible reinstatement under section 1210.1, subdivision (f)(3)(B). Thus, the record does not suggest that the Department attempted to circumvent the provisions of section 1210.1, subdivision (f)(3)(B).
In sum, we conclude that at sentencing, the trial court did not err treating defendant as a three-time probation violator.
Failure to Exercise Discretion
As noted, the Legislature amended the Act in 2006, and the amendment became effective on July 12, 2006. (See ante, fn. 3.) Before the amendment, if the state moved for the third time to revoke probation and the court found a probation violation, the probationer was ineligible for reinstatement on probation. (Former § 1210.1, subd. (e)(3)(C).) However, under the amendment, the court has discretion to reinstate probation a third time. (§ 1210.1, subd. (f)(3)(C); see ante, fn. 2.) Defendant was sentenced on August 28, 2006, and now claims the court should have applied the new provision. However, he asserts that “neither the court nor the parties gave any indication that anyone was aware of the change in the law.” Thus, he claims the matter must be remanded because he was entitled to be sentenced by a court that was aware of its discretion under the amendment to reinstate him on probation.
The Attorney General asserts three arguments in opposition. He argues that because the record is silent, it is presumed that the trial court was aware of and applied the correct law. (See People v. Mosely (12997) 53 Cal.App.4th 489, 496.) In any event, he argues that the new amendment was not applicable because, on September 14, 2006, two weeks before defendant was sentenced, an Alameda County Superior court issued a preliminary injunction, enjoining its enforcement pending a trial on its constitutionality. Therefore, “[a]ppellant has no current right to enforce the amended version of the statute.” Last, the Attorney General notes that the court expressly denied probation under section 1203, subdivision (e)(4), which prohibits probation except in unusual cases where it would serve the interests of justice. He argues that “[s]ince the court found no unusual circumstances . . ., it effectively found [defendant] would not benefit from further Proposition 36 treatment under [the new amendment].” In other words, the failure to exercise discretion under the amendment was harmless.
We granted defendant’s request for judicial notice of (1) the order granting a preliminary injunction, (2) the plaintiff’s memorandum of points and authorities in support of a preliminary injunction, and (3) the Attorney General’s opposition.
First, we disagree that the record is silent and agree with defendant that the court was unaware of its discretion under the amendment. The probation report did not discuss the court’s option to reinstate probation under the new amendment or argue against exercising discretion to reinstate probation under the amendment. Indeed, the probation report does not even cite that new code section. Instead, the probation report had a heading entitled “Probation Eligibility” and stated, “Pursuant to Section 1203(e)(4) PC the defendant is not eligible for further probation treatment.” The report recommended that probation be denied.
At the hearing, no one suggested that the court had discretion under the amendment to reinstate probation. The court did not cite or consider doing so and did not exercise discretion under the amendment. Rather, the court focused on whether to grant probation under section 1204, subdivision (e)(4) based on unusual circumstances. The court declined to do so, saying, “There’s no unusual circumstances. I mean, he’s had a felony one, two, three, four, five, six absent this one so he’s got to jump the hurdle of unusual circumstances to even get a glimpse of felony probation.” Given defendant’s prior felony convictions, the court announced that it would follow the recommendation in the probation report and deny probation.
Under the circumstances, we decline to presume that the trial court was aware of and implicitly declined to exercise its discretion under the amendment. The record more strongly implies that neither the court nor the parties were aware that the new amendment was applicable and thus, the court did not even consider defendant’s eligibility for reinstatement on probation under the Act.
It is settled that a defendant is entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) “A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.” (Ibid.) Thus, where the record demonstrates that the court was unaware of its discretion, the matter must be remanded. (Ibid.; People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229; e.g., People v. Ybarra (2007) 149 Cal.App.4th 1179, 1200-1201.) Accordingly, we shall remand the case for resentencing to give the court an opportunity to exercise its discretion under section 1210.1, subdivision (f)(3)(C).
We disagree with the Attorney General’s view that in finding no unusual circumstances under section 1204, subdivision (d)(4), the trial court exercised discretion equivalent to that contemplated in section 1210.1, subdivision (f)(3)(C). The court found no unusual circumstances based on the number of defendant’s prior felony convictions. That finding does not preclude a finding that defendant was not dangerous and would be amenable to further drug treatment on probation.
Last, we reject the Attorney General’s view that the preliminary injunction barred the trial court from exercising its discretion under the amendment. Neither he nor defendant claim that the amendment is unconstitutional, and that issue is not before us. Moreover, the superior court’s order is not a determination that the amendment is unconstitutional, and it restrains only the Governor, Attorney General, Secretary of State, Alameda County Sheriff, and Alameda County District Attorney from taking action to implement or enforce the new amendment. It does not purport to restrain other courts from applying it in determining whether to revoke probation after a third petition and violation.
Indeed, the record reveals that the Attorney General opposed the preliminary injunction and argued that the amendment was constitutional.
Disposition
The judgment is reversed and the matter remanded for resentencing.
Given our disposition, we need not address defendant’s claims concerning the restitution find and laboratory analysis fee. Issues concerning the propriety and amount of fees can be address at resentencing in light of the parties’ arguments on appeal.
WE CONCUR: PREMO, ELIA, J.
All further statutory references are to the Penal Code unless otherwise specified.