Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06589
CANTIL-SAKAUYE, J.
Defendant appeals from a judgment that imposed a five-year prison sentence after he admitted a violation of probation. The trial court had placed defendant on drug treatment probation pursuant to Proposition 36 after he pled guilty to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). For the next two years defendant’s whereabouts were unknown and he failed to report to his probation officer or for drug testing. At the ensuing probation violation hearing, the prosecutor agreed to felony probation provided the probation report showed no subsequent criminal history. The probation report showed defendant had two subsequent misdemeanor convictions in Glenn County; further, his extensive criminal history made him ineligible for probation absent an unusual case finding under Penal Code section 1203, subdivision (e)(4). The trial court did not make such a finding and sentenced defendant to five years in prison.
On appeal, defendant contends he could not be sentenced to prison because his Proposition 36 probation had not been previously twice revoked; the court violated the terms of defendant’s plea bargain; defendant could not opt out of Proposition 36; and to the extent any claim was forfeited, defendant received ineffective assistance of counsel. We reject defendant’s contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2006, defendant pled guilty to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted he had a drug-related prior conviction (Health & Saf. Code, § 11370.2, subd. (c)). The court granted defendant probation pursuant to Proposition 36. (Pen. Code, § 1210.1.) The terms of probation required defendant to report to his probation officer, submit to drug testing and complete a drug treatment program.
About a month later in early 2007, a petition alleging a violation of probation was filed. The petition alleged defendant failed to report to his probation officer on December 21, 2006, for Proposition 36 intake or thereafter and defendant failed to report for drug testing. Defendant’s probation was summarily revoked and a warrant for his arrest issued.
Almost two years later, the probation department wrote the trial court that defendant’s whereabouts had been unknown until November 2008, when defendant’s sister contacted the probation department. Defendant was living in Hemet; according to his doctor, defendant was too ill to travel due to numerous health problems, including heart disease, depression, chronic obstructive pulmonary disease, chronic back pain, severe abdominal pain and peripheral vascular disease. Based on this information, the probation department would not attempt to serve the warrant.
The arrest warrant was recalled in January 2009. Defendant appeared in court the next month and was arraigned.
At a hearing in April, defendant was prepared to admit the violation of probation. The district attorney noted that under People v. Guzman (2003) 109 Cal.App.4th 341, defendant was not amenable to treatment because he had failed to appear for treatment.
The next month, defense counsel recited the proposed resolution. Defendant would admit the violation of probation and he was not amenable to Proposition 36. Defendant would interview with the probation department by phone, for a check on what he had been doing the past two years. If he had no history, the prosecution would agree to a grant of felony probation. The prosecutor agreed to this resolution, noting that since defendant said he was in Hemet the entire time and since he had had an outstanding warrant, it was unlikely defendant had had any contacts with law enforcement. Under questioning by the court, defendant agreed to admit the violation of probation, indicated he was not able to participate in Proposition 36, but that he would like probation. Defendant understood if he was not granted probation, the maximum sentence was seven years.
Defendant admitted he did not report to the probation department on December 21, 2006, for his Proposition 36 intake and he failed to report for drug testing on six specified dates. The trial court found defendant had violated probation and was not asking for Proposition 36 consideration.
The probation report revealed that defendant had a long criminal history, including at least five prior felony convictions. Most recently, since his plea in the instant case, defendant had misdemeanor convictions in Glenn County. In February 2007, he had been convicted of possession of methamphetamine and being under the influence. The following August, defendant was convicted of possession of drug paraphernalia. The report found that due to defendant’s multiple felony convictions, he was ineligible for probation under Penal Code section 1203, subdivision (e)(4) absent an unusual case finding. The report concluded such a finding could not be made because the factors in aggravation outweighed the mitigating factors.
Penal Code section 1203, subdivision (e)(4) provides that, “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to... [¶]... [¶] [a]ny person who has been previously convicted twice in this state of a felony....”
The trial court agreed with the conclusion that an unusual case finding could not be made, citing the passage of time and defendant’s Glenn County cases. The court was prepared to give defendant the low term, for a total sentence of five years.
The defense argued for probation. The prosecutor argued for the middle term. The trial court denied probation and sentenced defendant to five years in state prison.
DISCUSSION
I.
Defendant contends the trial court erred in sentencing him to state prison after only his first violation of Proposition 36 probation and the court erred in permitting defendant to “opt out” of Proposition 36.
“By its terms, Proposition 36 requires the court to grant probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation.” (People v. Davis (2003) 104 Cal.App.4th 1443, 1446.) Generally, “a defendant loses the protection of [Proposition 36] only after violating a drug-related condition of probation three times.” (People v. Guzman, supra, 109 Cal.App.4th 341, 348.)
Proposition 36 is codified, in part, in Penal Code sections 1210 and 1210.1. Section 1210.1, subdivision (b), sets forth five categories of individuals who are ineligible for probation under subdivision (a). One category is defendants who “refuse[] drug treatment as a condition of probation.” (Pen. Code, § 1210.1, subd. (b)(4).)
The provisions of Proposition 36 are also codified in Penal Code section 3063.1 and division 10.8, commencing with section 11999.4 of the Health and Safety Code. (In re DeLong (2001) 93 Cal.App.4th 562, 566.)
In People v. Guzman, supra, 109 Cal.App.4th 341, defendant was placed on drug treatment probation pursuant to Proposition 36. After leaving the courtroom, defendant did not report to his probation officer or to the drug treatment facility; instead, he went to Mexico for five months and only returned to court on a bench warrant. (Id. at p. 344.) The appellate court held defendant’s Proposition 36 probation was properly terminated because defendant “evinced a complete and unequivocal refusal to undergo drug treatment.” (People v. Guzman, supra, at p. 350.) “[T]he trial court can terminate the probation of a defendant who, by his conduct following the grant of probation refuses to undergo drug treatment. Such a defendant is to be distinguished from a defendant who commences drug treatment and thereafter falters by violating conditions of probation.” (Id. at p. 350.)
Defendant contends Guzman is distinguishable because he did not leave the country and he did not refuse drug treatment. Defendant notes the court referred to defendant being unable to participate in Proposition 36 and the record shows he had numerous medical problems. He contends he moved to Riverside County and wanted to have his probation transferred there, a request that was ignored. It is unclear when defendant moved to Riverside County, but he was in Glenn County in February and the summer of 2007 committing crimes. Nor is there any indication defendant ever contacted probation to report his move or his medical problems. Instead, he let two years elapse without any contact with the probation department.
Defendant’s Proposition 36 probation was properly terminated based on his two-year refusal to undergo drug treatment. Defendant admitted he failed to report to the probation department for intake to determine his treatment program and he failed to report for six scheduled drug tests. The probation department was unaware of defendant’s whereabouts for almost two years. Although, unlike in Guzman, it appears defendant voluntarily returned to court, his two-year absence “evinced a complete and unequivocal refusal to undergo drug treatment.” (People v. Guzman, supra, 109 Cal.App.4th at p. 350.)
It appears defendant was motivated to resolve this matter because it was affecting his Social Security benefits.
II.
Defendant next contends the trial court violated the terms of his plea bargain by sentencing him to prison and failing to inform him of his right to withdraw his admission of violating probation. Defendant contends the trial court violated the plea bargain because the court sentenced him to prison, not because he had two subsequent misdemeanor convictions in Glenn County, but because he was statutorily ineligible for probation unless the court found an unusual case.
Pursuant to a plea bargain, defendant agreed to admit a violation of probation in exchange for the People’s agreement to felony probation for defendant if the probation report showed he had no criminal history since his 2006 plea. Defendant was not guaranteed probation and the court properly advised him that if he was not granted probation, the maximum sentence was seven years. Neither the prosecution nor the defense recognized defendant was statutorily ineligible for probation unless the court found an unusual case. The failure to recognize defendant’s ineligibility for probation would have posed an impediment to carrying out the plea bargain except that defendant failed to meet the agreed terms for probation due to his Glenn County convictions. Accordingly, the People were no longer bound by the agreement for felony probation and there was no violation of the plea bargain.
Defendant contends his Glenn County misdemeanors were immaterial because that was not the basis upon which the court sentenced him to prison. The subsequent convictions were material because they released the prosecutor from the plea bargain. Further, the court noted them in refusing to find an unusual case that would permit the grant of probation.
III.
Finally, defendant contends he was denied effective assistance of counsel because his counsel failed to argue defendant’s Proposition 36 probation could not be revoked or that sentencing defendant to prison violated the plea bargain. Since we have found the Proposition 36 probation was properly terminated and the plea bargain was not violated, we reject these contentions.
For the first time in his reply brief, defendant argues reasonably competent counsel would have recognized defendant was statutorily ineligible for probation absent a finding of unusual circumstances and would have made such a finding part of the plea negotiations. “But we do not consider an argument first raised in a reply brief, absent a showing why the argument could not have been made earlier.” (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.) Moreover, defendant fails to show he was prejudiced by counsel’s failure to recognize his ineligibility for probation; defendant fails to show “there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable” to him. (In re Jones (1996) 13 Cal.4th 552, 561.)
IV.
Pursuant to this court’s Miscellaneous Order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. (Ct. App., Third App. Dist., Misc. Order No. 2010-002.)
Prior to January 25, 2010, subdivisions (b) and (c) of section 4019 provided that, “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Subdivision (f) provided that, “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Stats. 1982, supra, at p. 4554.)
Defendant served 109 days in presentence confinement. The trial court awarded him 54 days of goodtime/worktime credit under former section 4019.
In October 2009, the Legislature passed Senate Bill No. 18 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50) (Senate Bill 18) which, among other things, amended section 4019. Senate Bill 18 amended section 4019 to provide for the accrual of presentence credits at twice the previous rate for all prisoners except those “required to register as a sex offender, ” “committed for a serious felony, as defined in Section 1192.7” or who have a prior conviction for a serious or violent felony. (§ 4019, subd. (b)(2); see also id., subd. (c)(2).) New subdivisions (b)(1) and (c)(1) of section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), “if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....” (§ 4019, subd. (f).) Senate Bill 18 went into effect on January 25, 2010.
These amendments to section 4019 apply retroactively. (People v. Brown (2010) 182 Cal.App.4th 1354.) Defendant is not required to register as a sex offender, has no prior convictions for a serious or violent felony, and his current convictions are not serious felonies. Because defendant served 109 days of presentence custody, he is entitled to 108 days of conduct credit. (§ 4019, subds. (b)(1), (c)(1), & (f).)
DISPOSITION
The judgment is modified to increase the presentence conduct credits to 108. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J. SIMS, J.