Opinion
B225853
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RONALD REEVES, Defendant and Appellant.
Trisha Newman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA327839)
APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund Wilcox, Judge. Affirmed.
Trisha Newman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant, Ronald Reeves, appeals from the trial court's denial of drug treatment probation under the Substance Abuse and Crime Prevention Act of 2000, commonly referred to as Proposition 36. (Pen. Code, §§ 1210, 1210.1, 3063.1; Health & Saf. Code, § 11999.4 et seq.) The trial court found that appellant, by failing to enroll and participate in a drug treatment program while on Deferred Entry of Judgment (DEJ), had impliedly refused treatment and was therefore ineligible for Proposition 36 probation. Appellant contends that the court erred in denying his Proposition 36 probation request because he did not refuse drug treatment while on DEJ, and even if he did, his conduct while on DEJ should not have been used in determining his Proposition 36 eligibility. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Arrest and Plea
The district attorney's office filed a complaint against appellant for possession of cocaine base in violation of Health and Safety Code section 11350, subdivision (a). Appellant was found eligible for DEJ pursuant to Penal Code section 1000, as well as for sentencing under Proposition 36, pursuant to Penal Code section 1210.1. On September 21, 2007, appellant pled guilty, and was placed on DEJ for an 18-month period. Appellant accepted the terms of DEJ, including that he participate in a drug abuse program and report to and cooperate with a probation officer regarding a plan for his drug abuse program.
Subsequent unspecified statutory references are to the Penal Code.
DEJ Proceedings
On November 20, 2007, appellant appeared in court for a progress report on his DEJ program. Appellant was again ordered to enroll in a drug treatment program, and was given until January 15, 2008 to provide proof of enrollment. On January 15, 2008, appellant appeared in court, without proof of enrollment, and an extension was granted to February 25, 2008. Appellant appeared in court on February 25, 2008, again without proof of enrollment, and the court granted him another extension to March 19, 2008. Appellant finally provided proof of enrollment on March 19, 2008, at which time the court ordered that he show proof of completion of the program by September 19, 2008. However, on May 1, 2008, appellant appeared in court to request re-enrollment paperwork for the DEJ drug treatment program, as he had been terminated from his program for consistent unexcused absences after attending five sessions of counseling and three self-help meetings. The proof of completion date was vacated and advanced to a progress report date, set for July 9, 2008. Appellant appeared in court on July 9, 2008, was unable to provide proof of enrollment, and the matter was continued to August 12, 2008.
At appellant's August 12, 2008 proof of enrollment hearing, appellant failed to appear, and DEJ was terminated. The court reinstated criminal proceedings and issued a bench warrant.
Over a year later, on September 11, 2009, appellant appeared in court after being picked up on the bench warrant. The court reinstated DEJ and ordered appellant to appear on October 23, 2009, to provide proof of enrollment in a DEJ treatment program. Appellant failed to appear in court on October 23, 2009, and DEJ was again terminated. The court reinstated criminal proceedings, entered a conviction, and issued another bench warrant. Appellant was brought to court on April 7, 2010 on the bench warrant, at which time he requested another opportunity to complete the DEJ program. The court rejected appellant's excuse for his noncompliance with the terms of DEJ - a death in his family - and refused to reinstate DEJ. A progress report date was set for April 23, 2010, at which time a probation report was ordered to be provided, detailing appellant's potential eligibility for Proposition 36 sentencing.
Proposition 36 Findings
Appellant appeared on April 23, 2010 and requested to be sentenced under Proposition 36. The court indicated that it deemed appellant's conduct over the prior three-year period while on DEJ an implicit refusal of drug treatment that disqualified appellant from Proposition 36 sentencing. The court focused on the multiple extensions given to appellant to enroll in a drug treatment program, the numerous times he was unable to prove that he had done so, his early termination, due to unexcused absences, from the one program in which he managed to enroll, and the multiple opportunities the court granted him to re-enroll in the program. The court also addressed appellant's failure to appear in court when ordered to do so, including a 13-month absence, until ultimately being arrested on a bench warrant. The court indicated that this conduct suggested that, although appellant repeatedly promised to enroll in and participate in drug treatment, he did not intend to do so, and instead intended to continue to use drugs. Nevertheless, upon defense counsel's request, the hearing was continued to April 29, 2010, to permit appellant to present evidence that he had not refused drug treatment and thus was entitled to Proposition 36 sentencing.
On April 29, 2010, appellant testified about his failures to timely enroll in and complete drug treatment after first being ordered to do so in September 2007. Appellant stated that he was unable to find a class and then had difficulty paying the fee, which resulted in his termination from the treatment program. According to appellant, he failed to appear in court in August 2008 with proof of re-enrollment because he lost the paperwork after his mother was evicted from her home and they had to move. He testified he was unable to appear in court in October 2009 because his aunt died. Upon being asked why there was a 13-month gap in court appearances between August 2008 and October 2009, appellant stated that it had "slipped" his mind.
By request of defense counsel, the hearing was again continued to May 25, 2010, to provide appellant a further opportunity to submit evidence that his unexcused absences and eventual termination from the drug treatment program resulted solely from his inability to pay for it. At that continued hearing, the court noted that appellant told a previous bench officer that he had been kicked out of the treatment program for being late, not for failure to pay. The court found appellant's "encyclopedia of excuses" for his many lapses unconvincing, and concluded that he rendered himself ineligible for Proposition 36 by refusing DEJ drug treatment. The court placed him on summary probation for a two-year period, and ordered him to serve 120 days in county jail, with credit for 58 days of presentence custody and 58 days for good time/work time.
Appellant appeals from the denial of his request to be sentenced to probation under Proposition 36.
DISCUSSION
Appellant argues that his conduct while on DEJ did not amount to an implied refusal of drug treatment, and even if he did refuse treatment while on DEJ, the trial court should not have relied on that conduct to determine his Proposition 36 eligibility. We conclude that substantial evidence supports the trial court's finding that appellant impliedly refused drug treatment, and find no error in the court's determination that this refusal rendered him ineligible for Proposition 36 probation.
Relationship Between DEJ and Proposition 36
Under DEJ, a defendant charged with certain enumerated non-violent drug offenses and who satisfies specific statutory requirements has the opportunity to plead guilty to the charges and have the charges dismissed upon his participation in and completion of a drug rehabilitation program. (§ 1000.1.) The charges can be dismissed no sooner than 18 months and no later than three years from the date defendant was referred to the program. (§ 1000.1, subd. (a)(3).) The defendant must be informed that if he fails to perform satisfactorily in the program, the prosecuting attorney, the court, or the probation department may make a motion for entry of judgment. (§ 1000.3.) Upon such a motion, if the court finds that the defendant failed to perform satisfactorily in the program, "the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing." (Id.) A defendant's initial plea of guilty does not constitute a conviction for any purpose, unless a judgment of guilty is entered pursuant to section 1000.3. (§ 1000.1, subd. (d).) A defendant is not entitled to receive any particular number of opportunities to complete a drug treatment program before the court can find him to be unamenable to treatment and terminate DEJ; under the statute, the trial judge has broad discretion in determining that a failure to participate in drug treatment constitutes unsatisfactory performance. (§ 1000.3; People v. Friedeck (2010) 183 CalApp.4th 892, 897 (Friedeck).)
Even if a defendant is terminated from DEJ, he may still be eligible for Proposition 36 probation. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1065.) Proposition 36 provides, "[n]otwithstanding 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." (§ 1210.1, subd. (a).) However, Proposition 36 will not be granted to "[a]ny defendant who refuses drug treatment as a condition of probation." (§ 1210.1, subd. (b)(4); see People v. Esparza (2003) 107 Cal.App.4th 691, 699 ["When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors, including refusing drug treatment."].) If a defendant's conduct demonstrates the "disingenuousness of his request for drug treatment," a court may find him ineligible for Proposition 36. (People v. Guzman (2003) 109 Cal.App.4th 341, 349.)
Proposition 36 was designed to emphasize treatment, not punishment, for drug addicts (People v. Guzman, supra, 109 Cal.App.4th at p. 346), and a defendant granted probation under Proposition 36 is given more than one opportunity to comply with the terms of probation. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.) Probation may be revoked only upon a second violation of probation terms, including the requirement to participate in a drug treatment program, and a defendant may receive jail time only upon a third violation of his probation terms. (§ 1210.1, subds. (f)(3)(B), (C).) In determining whether to revoke Proposition 36 probation, the trial court must take into consideration the defendant's performance in the program, whether the violations are continuous or serious, and whether the defendant is benefiting from the program. (§ 1210.1, subd. (f)(3)(B).)
In People v. Strong (2006) 138 Cal.App.4th Supp. 1 (Strong), the appellate division of the superior court considered the impact that a refusal of drug treatment while on DEJ has on a request for probation under Proposition 36. In that case, upon revocation of the defendant's DEJ, in part for failure to enroll in and attend drug treatment, the defendant requested to be placed on probation under Proposition 36. (Id. at p. Supp. 6.) The trial court denied his request, finding that the defendant's failure to comply with the DEJ terms indicated that he was not interested in drug treatment while on probation. (Ibid.)
On appeal to the appellate division, the defendant argued that Proposition 36 precludes eligibility for a defendant who refuses drug treatment only when such drug treatment is "a condition of probation" (§ 1210.1, subd. (b)(4)), and drug treatment while on DEJ is not drug treatment "„as a condition of probation.'" (Strong, supra, 138 Cal.App.4th at p. Supp. 4.) The court, however, found that DEJ is analogous to probation, in that a defendant granted DEJ is ordered to immediately report to the probation department and is "released into the community under the supervision of a probation officer under specified conditions, including that he enter into a drug treatment and test when requested." (Id. at pp. Supp. 5-6.) Moreover, the court held that the language in section 1210.1, subdivision (b)(4), "does not appear to limit ineligibility to only those who specifically refuse Proposition 36 drug treatment probation." (Strong, supra, 138 Cal.App.4th at p. Supp. 6.) Accordingly, the appellate division found that refusing drug treatment as a condition of DEJ precludes a defendant from eligibility for Proposition 36 probation. (Ibid.)
Strong was later approved by the Court of Appeal in Friedeck, which involved another defendant who was terminated from DEJ but requested Proposition 36 sentencing. (Friedeck, supra, 183 Cal.App.4th at p. 894.) In Friedeck, the defendant's probation officer reported to the court that there was no evidence that the defendant ever enrolled in the programs that were a part of his DEJ conditions. (Id. at pp. 894-895.) The defendant admitted to violating his DEJ terms, but maintained that he had lost his DEJ paperwork and did not know where to go. (Id. at p. 895.) He unsuccessfully sought probation under Proposition 36 and was sentenced to two years in prison. (Ibid.)
On appeal, the defendant argued that the court erred in finding that he had impliedly refused drug treatment and therefore was ineligible for Proposition 36 probation. (Friedeck, supra, 183 Cal.App.4th at p. 895.) The court held that whether a defendant's conduct demonstrates a refusal of drug treatment is a question of fact to be determined by the trial court, and a court is not required to find any claims and excuses made by the defendant to be credible. (Friedeck, supra, 183 Cal.App.4th at p. 897.) The court found that the trial court reasonably concluded that Friedeck's conduct while on DEJ showed he refused drug treatment. (Ibid.)
The Court of Appeal agreed with Strong that a refusal of drug treatment under DEJ qualifies as a refusal of drug treatment ""as a condition of probation'" for purposes of Proposition 36. (Friedeck, supra, 183 Cal.App.4th at p. 897.) The court also rejected the defendant's contention that his conduct while on DEJ was irrelevant to determining Proposition 36 eligibility because Proposition 36 applies only upon a conviction being entered, whereas no conviction is entered for a DEJ defendant until such time as DEJ is terminated for failure to perform satisfactorily the terms of DEJ. (Ibid.) The court held that "nothing in section 1210.1, subdivision (b)(4) requires that the refusal of drug treatment occur after conviction." (Ibid.) Acknowledging that the defendant's "refusal to enter drug treatment was a reason the conviction was entered," the court had no trouble concluding that this same conduct was "sufficient to preclude eligibility for Proposition 36 probation." (Id. at pp. 897-898.)
Appellant's Implied Refusal of Drug Treatment
Appellant contends that the trial court erred in finding that he had refused drug treatment while on DEJ. We review this factual finding under the substantial evidence standard. (People v. Rios (2011) 193 Cal.App.4th 584, 589.)
Appellant attempts to distinguish Strong and Friedeck on the ground that he did not abandon all efforts to comply with the conditions of his DEJ, as did the appellants in both Strong and Friedeck. Unlike the defendants in those cases, he enrolled in a treatment program and attended some counseling sessions. Despite this conduct, we find that substantial evidence supports the trial court's factual finding that, viewed as a whole, appellant's acts and omissions demonstrate an implied refusal of drug treatment.
Appellant repeatedly failed to provide proof of enrollment in a treatment program, was terminated from the only program he actually enrolled in due to unexcused absences, and then continued to fail to re-enroll. After terminating appellant's DEJ based on his failure to perform his DEJ conditions and to appear in court, the trial court provided appellant a second chance and reinstated DEJ. The court continued to give appellant the benefit of the doubt, only to have the appellant continue to fail to appear in court, including for a 13-month period. The trial court provided appellant with several opportunities to submit evidence demonstrating that he had not impliedly refused drug treatment, but ultimately the trial court determined that his conduct demonstrated that he wanted to use drugs rather than be in treatment. We will not second-guess the trial court's determination that appellant's various excuses for not getting treatment were not credible. Given the litany of opportunities the trial court gave appellant to fulfill his drug treatment condition and his repeated failures to do so, the trial court's determination that appellant's conduct implied a refusal of treatment was reasonable.
Propriety of Court's Reliance on Appellant's Conduct While on DEJ
Appellant argues that, even if he refused drug treatment while on DEJ, that conduct is not sufficient to preclude his eligibility for Proposition 36 probation. We disagree.
First, appellant argues that his failure to participate in drug treatment before the court terminated his DEJ is irrelevant to determining his Proposition 36 eligibility, because at the time he refused treatment he had not yet been convicted. He correctly notes that eligibility for Proposition 36 probation is only triggered upon a conviction (§ 1210.1, subd. (a)), while for DEJ defendants, no conviction is entered until after such time as DEJ is revoked. (§ 1000.3.) Appellant appears to overlook Friedeck, which rejected the identical argument and held that there is no requirement that the refusal of drug treatment occur after conviction. (Friedeck, supra, 183 Cal.App.4th at p. 897.) We agree with Friedeck that the timing of the conviction relative to the refusal to participate in drug treatment does not affect the finding of eligibility for Proposition 36 probation.
Second, appellant contends that it is unfair to rely on his failure to satisfy the more stringent requirements of DEJ to find that he failed to meet the more forgiving requirements of Proposition 36. Specifically, he notes that while a defendant on DEJ may have DEJ terminated after one instance of unsatisfactory performance of his DEJ conditions, under Proposition 36 a defendant is afforded multiple chances to comply with a drug treatment plan. (Compare § 1000.3 [specifying no minimum number of opportunities to comply with DEJ conditions] with § 1210.1, subds. (f)(3)(B), (C) [providing that under Proposition 36 a defendant may have probation revoked only upon second violation of his probation terms and receive jail only upon third violation].) This argument has little force in this case, however, where the number of chances the court gave appellant to enroll in and complete a drug treatment program far exceeded the minimum amount of opportunities required by Proposition 36. Further, although appellant was granted DEJ for an 18-month period, the court allowed him more than two years to attempt to complete the terms of his DEJ. In sum, appellant's repeated refusal of drug treatment in the DEJ program over an extended period of time was sufficient to preclude him from eligibility for Proposition 36 probation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.