Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202711, John S. Einhorn, Judge.
HUFFMAN, Acting P. J.
Otis James Mingo entered negotiated guilty pleas to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) and possessing drug paraphernalia (Health & Saf. Code, § 11364) and admitted he had two prior serious/violent felony or strike convictions (Pen. Code, § 667, subds. (b)-(i)) and had served seven prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
The trial court dismissed the two strike convictions, which were from 1973 and 1983, and the seven prior prison term enhancements. The court denied probation and sentenced Mingo to the middle term of two years on the cocaine possession count and credit for time served on the misdemeanor drug paraphernalia count. Mingo appeals, contending the court erred by not imposing mandatory probation and drug treatment pursuant to Proposition 36.
FACTS
According to the probation report, on November 6, 2006, Mingo flagged down two San Diego police officers near the police substation on Imperial Avenue. Mingo told the officers that his girlfriend had "shot him up with some bad heroin" and he needed help. The police searched Mingo and found .09 grams of cocaine and a glass pipe in his pockets.
DISCUSSION
Mingo contends he was eligible for Proposition 36 probation and drug treatment, but the trial court did not consider this option because his attorney told the court that he was not eligible for Proposition 36. Mingo is mistaken; he was statutorily ineligible for Proposition 36 probation and drug treatment.
Proposition 36 (which is also known as the Substance Abuse and Crime Prevention Act of 2000 (the Act)) was passed by California voters on November 7, 2000, and took effect on July 1, 2001; it is codified in Penal Code sections 1210, 1210.1, and 3063.1, and in division 10.8 (commencing with § 11999.4) of the Health and Safety Code. (People v. Murillo (2002) 102 Cal.App.4th 1414, 1417.) Its provisions amended state law to create an alternative sentencing scheme for persons convicted of certain drug offenses; it requires that qualifying offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, rather than a prison term or probation without drug treatment, thus eliminating the court's traditional discretion to determine whether such offenders are suitable for probation. (People v. Floyd (2003) 31 Cal.4th 179, 183, citing § 1210.1; People v. Thurman (2005) 125 Cal.App.4th 1453, 1461.)
The purposes underlying Proposition 36 are to "enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1208; People v. Johnson (2003) 114 Cal.App.4th 284, 293-294.) When a defendant is eligible for Proposition 36 treatment, probation is mandatory unless he or she is disqualified in accordance with specified statutory exceptions. (People v. Esparza (2003) 107 Cal.App.4th 691, 699.)
Whether a defendant is eligible for treatment under Proposition 36 is generally governed by section 1210.1, which provides in relevant part:
"(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. . . . A court may not impose incarceration as an additional condition of probation. . . ."
"(b) Subdivision (a) shall not apply to . . . .
"(1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person.
"[¶] . . . [¶]"
Although the bulk of Mingo's lengthy criminal record consists of offenses he committed considerably more than five years prior to the instant offense, Mingo was convicted of two misdemeanors within the five-year period: (1) in 2004, Mingo was convicted of fighting or challenging one to fight in a public place (§ 415, subd. (1)); and (2) in 2006 Mingo was convicted of two counts of misdemeanor assault, as a lesser included offense of assault with a deadly weapon (§§ 240, 1192.7, subd. (c)(23)). The 2004 and 2006 convictions, which occurred within five years of the instant offense, qualify as "misdemeanor conviction[s] involving physical injury or the threat of physical injury to another person" within the meaning of section 1210.1, subdivision (b)(1). Mingo's two prior strike convictions coupled with these two misdemeanor convictions make him ineligible for Proposition 36 probation and drug treatment. (§ 1210.1, subdivision (b)(1).)
Mingo argues in his reply brief that the disqualifying misdemeanors were only mentioned in the probation report and "this issue of violent misdemeanors were never litigated in the trial court." We are not persuaded by this argument.
The probation report was read and considered by the trial court. With respect to the 2006 misdemeanor assault conviction, the probation report states that Mingo struck an individual with a metal bicycle tire and rim. This unchallenged description of the offense eliminates any doubt that the offense "involv[ed] physical injury or the threat of physical injury to another person" within the meaning of section 1210.1, subdivision (b)(1). Mingo did not object to any portion of the probation report below; he has forfeited the right to challenge it before us. (See People v. Scott (1994) 9 Cal.4th 331, 348-352.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McDONALD, J.