Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI023382. J. David Mazurek, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Lucy Bavle (defendant) seeks reversal of the trial court’s order denying her reinstatement of Penal Code section 1210. 1 probation. We will affirm.
All further statutory references are to the 2006 Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Defendant is a 44-year-old woman with a 20-year history of addiction to heroin and a variety of other drugs, including marijuana and methamphetamine. Her criminal record as an adult, including the current offenses, stretches from 1987 to 2006. She has 22 documented arrests for multiple crimes and has been convicted of forgery (Pen. Code, § 470), petty theft with a prior (Pen. Code, § 666), burglary (Pen. Code, § 459), willful cruelty to a child (Pen. Code, § 273a), prostitution (Pen. Code, § 647, subd. (b), four convictions), and many drug-related offenses (Health & Saf. Code, §§ 11550, subd. (a), 13 convictions, 11364, three convictions). Most of defendant’s past offenses were misdemeanors, but her two 1996 drug convictions (Health & Saf. Code, § 11350, subd. (a)) were felonies for which she was sentenced to two years in state prison. She violated parole four times between 1998 and 2001.
On June 17, 2005, police conducting a lawful search arrested defendant in a Victorville motel room for possession of heroin and heroin-use paraphernalia, including smoking pipes and hypodermic needles. Defendant admitted that the items were hers. On January 12, 2006, she was charged by felony complaint with possession of a controlled substance (heroin) (Health & Saf. Code, § 11350, subd. (a), count 1.) On February 6 and June 14, 2006, defendant failed to appear for arraignment and a bench warrant was issued for her arrest. On July 3, defendant was arraigned and the warrant recalled, and on July 10 she pled nolo contendere to the charge in the complaint. Following her plea, the court found her eligible for section 1210.1 probation and drug treatment. She was released on her own recognizance on the condition that she report to probation on July 13 and return to court on August 11. Defendant agreed to both of these conditions but fulfilled neither, and another bench warrant was issued.
Eventually defendant was returned to custody at West Valley Detention Center and a probation officer was able to interview her by telephone on October 16, 2006. Defendant told the interviewer that she had begun using heroin at the age of 22 and that she used it every day. She said that in the past she had been able to stabilize while on methadone and asked to be placed in a program that included methadone treatment. The probation officer acknowledged defendant’s long-term drug dependency and her need for treatment but concluded that her goal was to supplement her drug use with methadone. Although defendant was statutorily eligible for Proposition 36 disposition, the probation officer believed that her history and record made her suitability for the program questionable.
On October 20, 2006, the court placed defendant on supervised probation for 36 months pursuant to the provisions of section 1210.1. Among the terms defendant agreed to in open court were that she violate no law, that she report to probation immediately and thereafter as directed by the probation office, and that she cooperate with the probation officer in a plan of rehabilitation. In addition, defendant agreed to all the terms and conditions outlined in the probation report of October 19—including a variety of drug-related terms—and confirmed that she understood them. Term No. 2 of the written agreement explicitly required defendant to report to her probation officer “in person . . . once every fourteen (14) days or as directed.” The court ordered defendant to return on December 6.
Probation Officer Danielle Teel (Teel) met with defendant on October 23, 2006. Teel referred defendant to Victorville Behavioral Health for treatment and instructed her to register as a narcotics offender, gave her Narcotics Anonymous and Alcoholics Anonymous registration forms, and told her to report to the probation office on November 29. On October 27, defendant enrolled at Victorville Behavioral Health; she attended three out of 12 scheduled classes. At the time of her enrollment, defendant admitted to using heroin but said she “had only used one or two times.” It was therefore determined that she did not fit the criteria for methadone treatment. On November 9, defendant called the probation office to report a change of address. During the call, Teel confirmed defendant’s November 29 appointment and directed her to return to probation on that date.
Defendant did not attend any Victorville Behavioral Health classes after November 17, 2006, and did not report to probation on November 29. A progress review report prepared for the December 6 hearing recommended that the court find defendant had violated a drug-related term for the first time and that her section 1210.1 probation be continued on the same terms and conditions. However, when defendant failed to appear in court on December 6, the court revoked her probation and issued still another bench warrant for her arrest. On December 18, defendant was terminated from the Victorville Behavioral Health program for nonattendance.
Eight months later, on August 1, 2007, defendant was arrested on the outstanding bench warrant. Probation Officers Teel and Bonita Farmer (Farmer) testified at defendant’s probation revocation Vickers hearing on September 27, 2007. Teel said that she had not seen defendant after the visit in which she made the initial referrals and that defendant had not contacted probation after the November 9 phone call. Teel explained that the decision about whether to drug test a Proposition 36 probationer at the time of a probation office visit is left to the individual discretion of the supervising officer.
People v. Vickers (1972) 8 Cal.3d 451 (Vickers).
Farmer confirmed the facts in the supplemental report she had prepared and filed September 27, 2007. Defendant admitted to Farmer that she had absconded from supervision, had been using drugs up until two days before her most recent arrest, and had made no effort to continue drug treatment or to contact probation. She was certain that a warrant had been issued and said she had planned to surrender but just “never got around to it.” In Farmer’s opinion, defendant was in violation of term No. 2 of her probation agreement because she had not maintained contact with the probation department and term No. 20 because she had not maintained enrollment in drug treatment. Farmer considered defendant’s actions evidence of “unwillingness to participate in drug treatment and refusal to comply with Proposition 36 Drug Treatment pursuant to [section] 1210.1[, subdivision] (b)(4).” Farmer opined that defendant should be found unamenable to treatment under Proposition 36 and sentenced to state prison.
Over the course of cross-examination and in argument defendant’s attorney contended vigorously that her client was not unamenable to treatment. Defendant had actually enrolled in the Proposition 36 program, had attended “a few” classes, and had discussed with a Victorville Behavioral Health representative the possibility of getting on a waiting list for a residential program that would provide methadone treatment. Her continued drug use meant that she was no different, or at least not “profoundly different” from many other Proposition 36 clients. It is precisely because drug use results in irresponsible behavior, counsel argued, that the law “allows for the three violations.” The prosecutor disagreed, pointing out that defendant had been sentenced on October 20, 2006, and that her last contact with probation had been on November 9, “a matter of weeks” afterwards. She had not thereafter contacted probation at all and should be found in violation of probation and unamenable to Proposition 36 treatment.
The court found defendant in violation of probation. In its opinion, defendant’s initial enrollment and “16 percent” attendance, did not amount to even minimal compliance with the program. Her performance differed from that of other Proposition 36 probationers because, “They at least show up to court, are given a first time violation, are returned for—returned to probation, placed back on their original terms and conditions and at least are being monitored . . . for compliance by probation and the court.” “So that’s where the Court sees some difference between [defendant] and other probationers . . . who do not sometimes comply or do return to using drugs. At least some of these people . . . admit their mistakes . . . and . . . establish a willingness to comply even though they are not a hundred percent successful.” Defendant, however, had not kept in touch with probation and had ignored her court dates. “[S]he made no effort to contact anybody, completely ignored the other terms and conditions of her probation, returned to using drugs, and didn’t come to court on her own; we had to go out and get her.” For all of these reasons, the court did not think defendant was amenable to Proposition 36 probation.
After listening again to argument—defense counsel kept insisting that defendant had done much “more than nothing” and should receive the low term at most, while the prosecutor argued for the mid or aggravated term—the court revoked defendant’s probation and sentenced her to the middle term of two years in state prison. The decision regarding the length of the term, it explained, was based on the fact that defendant was statutorily ineligible for regular probation, that her record of past offenses back to 1987 was extensive, and that her past performance on probation and parole had been unsatisfactory as evidenced by the fact that she had violated parole four times following her last release from prison.
DISCUSSION
Although defendant’s argument is framed as one, she makes in essence two claims: (1) that her initial enrollment in drug treatment and attendance at three sessions qualified her as a participant under the provisions of Proposition 36 to the point that her subsequent failure to continue must be characterized as first-time faltering, not as either a refusal to accept drug treatment as a condition of probation or as a lack of amenabilty to treatment; and (2) that all of her probation violations are “drug-related” within the meaning of section 1210.1.
The People reply (1) that defendant’s failures to either contact probation or appear in court are evidence that she was refusing to participate in treatment as a condition of probation, and (2) that her ongoing failure to contact probation amounts to a violation of a non-drug-related term of her probation agreement.
A. Revocation of Probation and Section 1210.1
Trial courts are ordinarily granted great discretion in determining whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) However, under section 1210.1, one of the statutes that implemented Proposition 36, this discretion is limited. (In re Taylor (2003) 105 Cal.App.4th 1394, 1399.) Absent certain specified exceptions, an offender who commits a nonviolent drug possession offense must receive probation. (§ 1210.1, subd. (a); People v. Floyd (2003) 31 Cal.4th 179, 183.) One of the exceptions occurs when an offender refuses to accept drug treatment as a condition of probation. (§ 1210.1, subd. (b)(4).)
These include, among others, sections 1210, 1210.1, and 3063.1. (People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 535.)
The statute distinguishes between participants who violate probation by transgressing non-drug-related terms of their probation agreements and offenders who violate drug-related terms, as well as among offenders who violate drug-related terms, depending on how many times they have done so. (§ 1210.1, subd. (e)(1)-(2).) Drug-related terms of probation include “a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.” (§ 1210.1, subd. (f).)
Courts have recognized that probationers in drug treatment programs may sometimes “falter” in the initial stages of their recovery by violating drug-related terms of their probation agreements. (In re Taylor, supra, 105 Cal.App.4th at p. 1397.) An offender in the program who, for the first time, violates probation by failing to comply with a drug-related term of her probation agreement must be reinstated unless the People prove that she presents a danger to the safety of others. (§ 1210.1, subd, (e)(3)(A).) The probation of an offender who violates a drug-related term a second time is subject to revocation only if the People prove that she presents a danger to others or is unamenable to treatment. (§ 1210.1, subd, (e)(3)(B).) An offender who violates a drug-related term for the third time loses the protection of the statute and may have probation revoked. (§ 1210.1, subd. (e)(3)(C).) By contrast, an offender who violates a non-drug-related term of probation is subject to immediate revocation if, after a hearing, the alleged violation is proven. (§ 1210.1, subd. (e)(2).) Once section 1210.1 probation has been revoked, “the defendant may be incarcerated pursuant to otherwise applicable law” without regard to the provisions of the statute. (§ 1210.1, subd. (e)(1).)
B. Analysis
In this case, defendant is not entitled to reinstatement of probation both because her conduct demonstrated a refusal to accept drug treatment as a condition of probation and because when she failed to contact her probation officer, she violated a non-drug-related term of her probation agreement.
We base our decision on these two issues and therefore do not address the question of defendant’s amenability to treatment.
1. Refusal of treatment as a condition of probation
In People v. Guzman (2003) 109 Cal.App.4th 341 (Guzman), after agreeing to enter a Proposition 36 drug treatment program and abide by associated probation terms, the defendant left the country and failed to contact the probation department or to register for the program. (Id. at p. 344.) On appeal of the trial court’s order revoking his probation, the defendant argued that his failure to register was not a refusal to accept drug treatment within the meaning of section 1201.1. The eligibility requirement, he insisted, applied only to the initial grant of probation and since he had agreed to accept the term at the relevant hearing, his failure to report had to be assessed under the statute’s provisions applying to probation violations. (Guzman, supra, at p. 349.) The appellate court found more persuasive the People’s argument that, despite an initial verbal “acceptance,” a defendant may demonstrate refusal of treatment as a condition of probation by “showing such a positive unwillingness to participate.” (Id. at p. 349) He is one who “by his conduct following the grant of probation refuses to undergo drug treatment.” (Id. at p. 350.) That is what happened here.
Defendant argues, as she did below, that her situation is “very different” from that of the Guzman defendant because she initially registered for the program and attended three sessions. She insists she is entitled to reinstatement as a first-time offender who has merely “faltered” by lapsing “back into drug use” and whose failures must in fact be assessed under the provisions of section 1210.1, which apply to probation violations. (§ 1210.1, subd. (e)(2)-(3).) We are not persuaded. Defendant did not lapse “back into drug use.” She was never out. Defendant tested positive for opiates at the time she registered for the Victorville Behavioral Health program; by her own admission almost a year later, she had never even tried to quit using. When she was finally arrested in a motel room almost 10 months after absconding from supervision, she was under the influence and had used just two days before.
Aside from the minimal acts of registering and attending just three of a dozen early sessions, defendant’s situation is more like that of the defendant in Guzman than she is willing to admit. Like him, defendant continued to use drugs, absconded from supervision, and never again contacted probation or the court. Like him, despite an initial verbal “acceptance,” defendant demonstrated by her subsequent conduct that she was refusing to undergo treatment. (Guzman, supra, 109 Cal.App.4th at pp. 349-350.) We agree with the trial court that her initial token compliance cannot be analogized to that of a person who enters the program in good faith, registers for and attends scheduled drug treatment sessions even when she is unable to remain completely clean, meets with and seeks the aid of her probation officer, and submits to court supervision. Defendant did none of these things. She refused to participate in the program and thereby showed that she had not accepted drug treatment as a condition of probation. (§ 1210.1, subd. (b)(4).)
2. Violation of a non-drug-related term of probation
Even assuming for the sake of argument that defendant really did accept drug treatment as a condition of probation and that her failures to ever report—to her probation officer or to the court or to subsequent sessions of her treatment program—should be assessed under the probation violation provisions of section 1210.1, we would not characterize her as a participant who violated only a drug-related term of her probation agreement. Defendant violated a non-drug-related term.
The requirement that a probationer report regularly to a probation officer is not per se a drug-related term unique to section 1210.1 agreements; it is a general term found in every probation agreement. A probationer who repeatedly fails to report to her probation officer may thus be considered to have violated a non-drug-related condition of probation. (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1209; People v. Johnson (2003) 114 Cal.App.4th 284, 299-300.) If no drug testing can occur, as when the reporting is by mail, then the reporting requirement is definitely not a drug-related term and a probationer who fails to report “stands in the same shoes as any other probationer and he is subject to whatever sentencing statutes bear on his sentencing.” (People v. Dixon (2003) 113 Cal.App.4th 146, 153.) When the stated purpose of reporting is to test the probationer for drugs, however, the requirement may be considered a drug-related term. (In re Taylor, supra, 105 Cal.App.4th at pp. 1398-1399; People v. Dixon, supra, at pp. 150-152.)
Here, no testing could occur—and there was no evidence that any did occur—because defendant’s actions made testing impossible. Defendant’s probation officer directed her to report on November 29, 2006. She did not. As the trial court put it, she “made no effort to contact anybody” and “completely ignored the other terms and conditions of her probation.” Among the terms she ignored was the one requiring her to report to her probation officer “in person . . . every fourteen (14) days or as directed.” Once it was proven that defendant never reported, she stood in the shoes of any other probationer and the court had the power to order her incarcerated “without regard to the provisions” of this statute. (§ 1210.1, subd. (e)(1).) It is true that Teel testified that a probationer might be tested, depending on the criteria of the particular supervising probation officer, but because defendant never contacted probation at all after her initial interview, there was no evidence that she had been or ever would have been tested. Under these circumstances, it cannot be said that the general requirement that she report to her probation officer was a drug-related term of her probation agreement.
Moreover, drug-related terms of probation are explicitly defined by the statute to include “a . . . specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.” (§ 1210.1, subd. (f).) A general requirement that a probationer, like every other probationer, must report to her probation officer is not on this list.
Finally, defendant did not merely fail to contact her probation officer on November 29 and December 6, 2006. She failed to contact her probation officer during any of the subsequent nine months. If she had not been arrested, there is no evidence that she would have contacted her probation officer ever again. Defendant was certain that a warrant had been issued, but she just “never got around to” surrendering. In Vickers, the California Supreme Court noted that a probationer who “severs the lines of communication with those assigned to supervise him” and in effect “absconds” is not entitled to profit by his wrongdoing. (Vickers, supra, 8 Cal.3d at p. 460.) We cannot see that defendant is entitled to profit from her decision to evade those assigned to supervise her—her probation officer and the court—for the better part of a year.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., GAUT J.