Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF050055
SIMS , J.Defendant Gabriel Jose Lopez, Jr., appeals from the trial court’s revocation of probation and imposition of a state prison sentence. He contends that the court failed to exercise its discretion because it misunderstood the applicable law. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2005, defendant was charged by information with felony counts of burglary (count one; Pen. Code, § 459; undesignated section references are to the Penal Code) and possession of methamphetamine (count two; Health & Saf. Code, § 11377, subd. (a)). The information also alleged a 1993 “strike” conviction for shooting at an inhabited dwelling or vehicle (§§ 246, 667.5, 1192.7, subd. (c)).
On February 6, 2006, defendant entered a negotiated no contest plea to count two and admitted the prior conviction. On April 17, 2006, the trial court imposed three years of probation under Proposition 36 (§ 1210.1 et seq.), with terms and conditions including drug testing and reporting requirements.
On May 22, 2006, the Sutter County Probation Department alleged that defendant had violated his probation terms and conditions by repeatedly testing positive for methamphetamine, failing to participate in substance abuse counseling, and failing to report to his probation officer. After defendant’s arrest and return to Sutter County, the Probation Department filed an amended declaration on November 13, 2006, additionally alleging that defendant had failed to report to his probation officer since May 5, 2006, and had left the state without his probation officer’s consent in May 2006.
Sometime before December 5, 2006, defendant was released from custody on his own recognizance, apparently due to illness. Thereafter, he failed to appear. On January 30, 2007, the Probation Department requested another bench warrant, alleging that he had committed a new probation violation by leaving the state in January 2007 without his probation officer’s permission.
At the contested probation violation hearing of March 29, 2007 (see below), defendant testified that he had gone to Mexico and enrolled in a drug treatment program there. (He produced a purported Spanish-language certificate of his completion of the program, but the trial court did not admit it into evidence because the defense failed to provide a certified English translation.) He was apprehended by Border Patrol when he tried to reenter the United States.
On March 29, 2007, the court found after a contested probation violation hearing that defendant had violated probation by submitting a urine sample that was positive for narcotics on May 5, 2006, failing to attend substance abuse counseling and detox, failing to advise his probation officer within 24 hours of his discharge from a drug treatment program, and leaving the state in January 2007 without his probation officer’s consent.
A supplemental probation report recommended denying reinstatement of probation and imposing a six-year prison sentence (the upper term for defendant’s methamphetamine-possession conviction, doubled under Three Strikes).
After reading the supplemental probation report and hearing argument, the trial court denied reinstatement of probation and imposed a four-year prison sentence (double the middle term). In imposing the prison sentence, the trial court remarked, “[T]he nature of Prop 36 is it can’t use jail time to motivate people to rehab themselves.”
DISCUSSION
Defendant contends: (1) The record shows that the trial court was unaware of the June 2006 amendment to Proposition 36 (accomplished by Senate Bill 1137), which gave trial courts the option of reinstating probation while imposing a jail term of up to 30 days as “a tool to enhance treatment compliance.” (2) Because the trial court did not know of this provision, it could not have properly exercised its discretion as to whether to reinstate or revoke probation. (See People v. Downey (2000) 82 Cal.App.4th 899, 912; People v. Penoli (1996) 46 Cal.App.4th 298, 302.) (3) Therefore, we must reverse and remand the matter so that the trial court can exercise its discretion with a full understanding of the applicable law. The argument fails.
Section 1210.1, as originally enacted, provided in part: “If a defendant receives probation under subdivision (a), and violates that probation . . . by violating a non-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 court may modify or revoke probation if the alleged violation is proved.” (§ 1210.1, subd. (e)(2).) Effective June 12, 2006, it was amended in relevant part as follows: “If a defendant receives probation under subdivision (a), and violates that probation . . . by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section. . . . If the court reinstates the defendant on probation, the court may, after receiving input from the treatment provider and probation, if available, intensify or alter the treatment plan under subdivision (a), and impose sanctions, including jail sanctions not exceeding 30 days, a tool to enhance treatment compliance.” (§ 1210.1, subd. (f)(2); Stats. 2006, ch. 63, § 7.)
We need not decide whether the trial court was unaware of the provision defendant cites because the court could not have followed it in any event. A statewide preliminary injunction issued on September 14, 2006, before the probation revocation hearing in this case, which enjoined the People “from taking any action to implement, enforce or give effect to Senate Bill 1137 . . . until such time as a trial on the merits may be had or until further notice of this court.” (People v. Hartley (2007) 156 Cal.App.4th 859, fn. 1.) That injunction is still in effect. (Ibid.) Thus, the court was required to follow Proposition 36 as originally enacted, which does not allow a trial court to impose jail time while reinstating probation. There was no error.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.