Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Nos. RIF131122 & RIF135447. Paul E. Zellerbach and Helios (Joe) Hernandez, Judges.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
This appeal involves two cases. The issue is whether the trial court abused its discretion in sentencing defendant on his revocation of probation case, case No. RIF131122 (E043251), before defendant was able to resolve his other case, case No. RIF135447 (E043382). We find no abuse and will affirm the judgment.
We granted defendant’s request to consolidate case Nos. E043251 (superior court case No. RIF131122) and E043382 (superior court case No. RIF135447), with E043251 being the designated master file.
I
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2006, a complaint, case No. RIF131122, was filed against defendant charging him with one count of possession of rock cocaine. (Health & Saf. Code, § 11350, subd. (a).) The complaint also alleged that defendant had sustained two prior prison term convictions. (Pen. Code, § 667.5, subd. (b).)
On July 18, 2006, defendant pleaded guilty to the offense and admitted the two prior prison term convictions. He was placed on three years of formal probation on various terms and conditions and ordered into drug treatment pursuant to Proposition 36.
The probation department sought revocation of defendant’s probation on August 21, 2006, for failure to complete certain aspects of the Proposition 36 program. On September 6, 2006, defendant’s probation was reinstated, and he was ordered to complete the program as diverted by probation.
On October 20, 2006, the probation department alleged another violation of probation based on defendant’s failure to participate and complete a substance abuse program.
On January 17, 2007, defendant admitted to failing to participate in a substance abuse program. Probation was reinstated, and defendant was ordered to complete the substance abuse program. On February 9, 2007, defendant’s probation was continued, and authorization to reenter the program was confirmed by the court.
On March 10, 2007, defendant was seen dropping a clear plastic bag that contained three rocks of cocaine by officers on patrol in an area known for high drug trafficking. Based on the drugs and the fact defendant had money spread out all over his person and the area, the officers opined the drugs were possessed for sale. A search of defendant revealed a glass pipe and marijuana.
On March 13, 2007, a felony complaint, case No. RIF135447, was filed charging defendant with one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), with a prior felony drug conviction (Health & Saf. Code, § 11370.2, subd. (a)); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The complaint also alleged that defendant had suffered two prior prison term convictions (Pen. Code, § 667.5, subd. (b)) and that defendant was in violation of his probation in case No. RIF131122.
On March 21, 2007, the probation department sought to revoke defendant’s probation in case No. RIF131122 based upon defendant’s failure to obey all laws, ordinances, and court orders. Defendant denied the allegations, and a hearing was set. Defendant’s probation was meanwhile revoked.
On April 4, 2007, the trial court conducted a violation of probation hearing concurrently with the preliminary hearing in case No. RIF135447. Defendant was bound over on those charges and also found to be in violation of probation as a result of that finding.
An information in case No. RIF135447 was filed on April 17, 2007.
On May 2, 2007, both parties requested the violation of probation case be trailed until the conclusion of case No. RIF135447. The joint request was denied.
On May 4, 2007, the trial court revoked defendant’s probation in case No. RIF131122, and sentenced defendant to the midterm of two years in state prison. The court also imposed two additional consecutive one-year terms for each of the prison priors. The total term of imprisonment was four years with credit for time served. Defendant thereafter filed a timely notice of appeal.
On May 16, 2007, in case No. RIF135447, the prosecution added an additional count of possession of a controlled substance (Health & Saf. Code, § 11350) as count 4. That same day, defendant withdrew his not guilty plea, pleaded guilty to count 4, and admitted having suffered one prior prison term. Defendant was sentenced to a total term of four years in state prison with credit for time served. The sentence was to run concurrent to the sentence in case No. RIF131122. Defendant timely filed his notice of appeal.
II
DISCUSSION
Defendant contends the trial court abused its discretion in sentencing him on his revocation of probation case before he was able to resolve case No. RIF135447. Specifically, he claims that had the possessory offense he pleaded guilty to in case No. RIF135447 been the sole basis for the violation of probation in the earlier case, case No. RIF131122, it would appear that he would have been eligible for reinstatement to the Proposition 36 program despite the new arrest, as it was use related.
Sentencing choices such as the one at issue here, whether to proceed on the probation case prior to resolution of the new case, reinstate probation, or sentence a defendant to prison, are reviewed for abuse of discretion. “A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.” (People v. Delson (1984) 161 Cal.App.3d 56, 62.) A court abuses its discretion “whenever the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) We will not interfere with the trial court’s exercise of discretion “when it has considered all facts bearing on the offense and the defendant to be sentenced.” (People v. Vargas (1975) 53 Cal.App.3d 516, 533.)
Here, we cannot find that the court abused its discretion in denying the parties’ request to trail the probation case following resolution of the new case or in refusing to reinstate probation and in imposing a state prison sentence in case No. RIF131122.
Defendant claims that the “unique facts here” show that possession of cocaine, count 4 in the second case to which he pleaded guilty, made him eligible for rereferral to a Proposition 36 program; and had this second case been determined as a simple possession case, it would appear he would have gone back to another Proposition 36 program. Defendant’s assertions are all speculative. In addition, even if we assume for the sake of argument that the trial court erred in refusing to trail the probation revocation case following resolution of the new case, we cannot find error. In other words, it is not reasonably probable that defendant would have obtained a better outcome, i.e., that he would have been reinstated on Proposition 36 probation, had the trial court trailed the probation revocation case and waited for resolution of the new case. (People v. Watson (1956) 46 Cal.2d 818, 836; see, e.g., People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1639.)
Penal Code section 1210.1 was enacted as part of Proposition 36, which was passed by California voters at the November 7, 2000, general election and “amended state law to require that certain adult drug offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment.” (People v. Floyd (2003) 31 Cal.4th 179, 183.) The principal purpose behind Proposition 36 was to divert into treatment persons whose only offenses were nonviolent drug possession offenses. (People v. Dagostino (2004) 117 Cal.App.4th 974, 986 (Dagostino), citing People v. Goldberg (2003) 105 Cal.App.4th 1202, 1208.) Under Proposition 36, a defendant who is convicted of a nonviolent drug possession offense is generally placed on probation rather than being sentenced to imprisonment, on condition of completing a drug treatment program. (Pen. Code, § 1210.1, subd. (a).)
Proposition 36 also includes specific rules to be applied when a defendant granted probation with a drug treatment condition violates a condition of probation. (People v. Guzman (2003) 109 Cal.App.4th 341, 347.) Different rules apply depending on whether the defendant violates a “drug-related” or “non-drug-related” condition of probation. (Guzman, at p. 348.) A probationer remains entitled to be returned to probation after the first and second violations of a drug-related condition of probation unless he poses a danger to others or is unamenable to treatment. (Pen. Code, § 1210.1, subd. (e)(3)(A), (B), (E); Dagostino, supra, 117 Cal.App.4th at p. 987; Guzman, at p. 348; People v. Dixon (2003) 113 Cal.App.4th 146, 151.) If a probationer violates a non-drug-related condition of probation, however, the court has the discretion to incarcerate the probationer for such violation. (Pen. Code, § 1210.1, subd. (e)(2); Guzman, at p. 348.) “The prosecution has the burdens of producing evidence and of persuasion that defendant’s violation ‘did not involve a drug-related condition of probation.’” (Dagostino, at p. 988.)
The statute states that “[t]he term ‘drug-related condition of probation’ shall include a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.” (Pen. Code, § 1210.1, subd. (g).)
In this case, the trial court made no finding that defendant posed a danger to others.
Here, the trial court’s comments make it clear that it discounted defendant’s claim that his possession of cocaine had been a simple possession. The court stated: “He was held to answer for possession for sale, and those were the charges that were filed by the district attorney’s office.” Penal Code section 1210, subdivision (a) provides: “The term ‘nonviolent drug possession offense’ means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance . . . . The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance . . . .” (Italics added.)
Defendant, however, asserts: “Had the new case been ultimately determined either by trial or some other disposition as being a case involving only a charge of simple possession of a controlled substance, it would appear he would have been eligible for continuation in the [Proposition] 36 program.” This contention has previously been rejected.
In People v. Glasper (2003) 113 Cal.App.4th 1104 (Glasper), the Sixth District Court of Appeal rejected the defendants’ contention that “the jury’s decision to acquit them of possession for sale and to find them guilty of the lesser included offense of possession precluded the trial court from making a factual determination that there was evidence the cocaine base found outside the Nissan was possessed for purposes other than personal use.” (Id. at pp. 1112-1113, 1116.) The appellate court stated: “[T]he trial court correctly determined that it had ‘the inherent authority’ to consider the trial testimony in determining a defendant’s eligibility for Proposition 36.” (Id. at p. 1113.) It further stated: “[W]e are convinced the intent of the electorate to strictly limit the use of Proposition 36 to those involved in simple drug possession for personal use would be frustrated were we to accept the argument that a defendant must be given Proposition 36 diversion unless the prosecution pleads and the jury finds that the felony of transportation was for something other than personal use.” (Id. at p. 1114.) Accordingly, Glasper upheld the trial court’s denial of the motions for Proposition 36 treatment. (Glasper, at p. 1116.)
In Glasper, the three defendants raising the Proposition 36 issue were all convicted of transportation and two of the three were also convicted of simple possession. (Glasper, supra, 113 Cal.App.4th at p. 1107.)
In People v. Dove (2004) 124 Cal.App.4th 1 (Dove), this court held the trial court properly denied Proposition 36 treatment for a defendant found guilty of both transportation and simple possession, but not guilty of possession for sale. (Dove, at pp. 3-4, 8-11.) We concluded: “[A] factual finding that a defendant did not possess or transport a controlled substance for personal use, for purposes of Proposition 36 sentencing, can be made by the trial court under a preponderance of the evidence standard. . . .” (Id. at p. 4.) We also stated, “[t]he trial court’s finding that the possession or transportation was not for personal use need not be stated on the record. If the trial court imposes a prison sentence, we will imply the necessary finding. Moreover, we will sustain that implied finding as long as it is supported by substantial evidence. [Citations.] Thus, unless the evidence shows personal use as a matter of law, a prison sentence is not subject to reversal merely because the trial court failed to make an express finding of personal use.” (Id. at pp. 10-11, italics added.) Finally, we stated: “[T]he acquittal on the charge of possession for sale did not bind the trial court. The acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale. . . . [T]he trial court was free to redetermine the personal use issue based on the preponderance of the evidence. [Citations.]” (Id. at p. 11, italics added.) Accordingly, we affirmed the judgment. (Id. at p. 12.)
In the present matter, because a jury’s later verdict does not decide the question of whether a defendant’s drug possession was “for personal use” within the meaning of Penal Code section 1210, the trial court properly addressed that issue and found, by a preponderance of the evidence, that defendant’s drug possession was not “for personal use.” (Dove, supra, 124 Cal.App.4th at pp. 10-11.) At the preliminary hearing, an experienced officer testified that, based on the amount of drugs and the fact defendant had money spread out all over his person and the area he was in, defendant possessed those drugs for sale. The court found the evidence sufficient for purposes of the preliminary hearing and bound defendant over for possession for sale. Whether or not defendant would later be found guilty or not guilty of that charge is irrelevant, as there is substantial evidence to support the trial court’s finding that defendant did not possess the cocaine “for personal use,” but rather for the purpose of sale. Because there is substantial evidence to support that finding, it is not within our appellate authority to independently determine defendant is, as a matter of fact and law, eligible for Proposition 36 treatment. (Dove, at pp. 10-11.)
Regardless, the trial court also found that defendant was not amenable to treatment. The trial court here succinctly explained the fact that the program had not been “very successful for him.” As noted previously, a probationer remains entitled to be returned to probation after the first and second violations of a drug-related condition of probation unless he is unamenable to treatment. (Pen. Code, § 1210.1, subd. (e)(3)(E); People v. Dixon, supra, 113 Cal.App.4th at p. 151.)
While defendant may have benefited from further treatment (though it appears unlikely based on defendant’s numerous and repeated violations of parole and probation despite being given many opportunities to rehabilitate), the trial court’s refusal to reinstate his probation did not constitute an abuse of discretion. The fact that a defendant would have benefited from further treatment does not entitle him to remain on probation after repeatedly violating the conditions of his probation. Indeed, “‘[a]nticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time.’” (Dagostino, supra, 117 Cal.App.4th at p. 987.) As explained by the trial court, defendant has used up those chances. Under these circumstances, the trial court was well within its discretion in refusing to give defendant another chance at probation and in sentencing him to prison.
Accordingly, we find the trial court properly exercised its discretion in declining to trail the probation case following resolution of the new case.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.