Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. PA038933, Ronald S. Coen, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Margaret Elaine Keith challenges the sentence imposed by the trial court because she was not placed on probation under Penal Code section 1210.1, which was enacted as part of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36), approved by voters on November 7, 2000. (People v. Esparza (2003) 107 Cal.App.4th 691.) Respondent concedes the point and we agree. The sentence is reversed and the case remanded for resentencing.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was arrested on the present charge in May 2001, when Los Angeles police officers saw her toss away a plastic bindle as they approached her. The bindle was retrieved and determined to contain methamphetamine. Appellant was charged with one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). It was alleged that appellant had suffered prior felony convictions in 1992 within the meaning of Penal Code section 1203, subdivision (e)(4). She pled not guilty and denied the allegations.
In October 2001, appellant failed to appear in court and a bench warrant was issued. She was arrested on that warrant on August 14, 2006. At a pretrial hearing on September 19, 2006, her attorney asserted that she was eligible for probation under Proposition 36, and asked that she be given that form of probation. The trial court did not agree. It said: “Based upon her record before me, she is not suitable. [¶] It should be noted there was a bench warrant outstanding for some five years. And the statements that were given by the defendant in a supplemental report show she is not suitable for Prop. 36, and I am going to deny that.”
Appellant pled no contest to one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). She was sentenced to state prison for the high term of three years as part of a plea bargain, but that sentence was suspended. Appellant was placed on three years formal probation, on condition that she serve 365 days in county jail, pay a restitution fine of $200 (§ 1202.4, subd. (b)), a probation revocation fine of $200 (§ 1202.44), a security fee of $20, and a $50 laboratory fee (Health & Saf. Code, § 11372.5). A parole revocation fine of $200 under section 1202.45 was suspended.
Following sentencing, appellant filed a timely notice of appeal and asked the trial court to issue a certificate of probable cause so that she could challenge the denial of Proposition 36 probation on appeal. The trial court refused to issue the requested certificate. We granted appellant’s petition for writ of mandate and directed the trial court to issue the requested certificate (B194990), which it then did. Appellant challenges only the trial court’s refusal to grant Proposition 36 probation.
DISCUSSION
Appellant argues, and respondent concedes, the trial court erred in denying her Proposition 36 probation. Proposition 36 offers nonviolent defendants charged with simple drug possession the opportunity to participate in structured outpatient drug treatment programs in lieu of incarceration. (People v. Superior Court (Edwards) (2007) 146 Cal.App.4th 518, 521; People v. Esparza, supra, 107 Cal.App.4th 691, 696.) “Placement of eligible defendants in Proposition 36 programs is not a discretionary sentencing choice made by the trial judge and is not subject to the waiver doctrine. (People v. Welch (1993) 5 Cal.4th 228, 237.)” (People v. Esparza, supra, 107 Cal.App.4th at p. 699.)
“Subdivision (b) [of section 1210.1] sets forth five exceptions to eligibility for otherwise eligible defendants, which can be summarized as: 1) conviction of prior strike offenses within five years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability to drug treatment. (§ 1210.1, subd. (b).)” (People v. Esparza, supra, 107 Cal.App.4th at p. 696 .) Section 1210.1, subdivision (a) prohibits a court from imposing incarceration as a condition of probation under Proposition 36. (Ibid.)
The trial court denied Proposition 36 probation on the grounds that appellant had an outstanding bench warrant for five years and because of statements she made in a supplemental probation report. It is undisputed that appellant had no convictions for serious or violent felonies. The statement she made in the supplemental probation report related to her lengthy substance abuse history. She said she had been a heroin addict for 15 years but had not used that substance since 2001. She used methamphetamine for a two-year period ending in 2000, but resumed the use of methamphetamine six months before her arrest in 2006, smoking it every two or three days. Respondent concedes that these circumstances do not fall within any of the statutory exceptions to Proposition 36 probation eligibility under section 1210.1.
Appellant, having obtained a certificate of probable cause, is entitled to the benefits of Proposition 36. The trial court is directed to resentence appellant in conformity with the views expressed in this opinion.
DISPOSITION
The judgment of conviction is affirmed, the sentence is reversed, and the matter is remanded to the trial court for resentencing under Proposition 36.
We concur: WILLHITE, J., SUZUKAWA, J.