Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge, Super. Ct. No. 06HF0650
Allison H. Ting, 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, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Michelle Benabou appeals from the court’s imposition of sentence pursuant to her written request. She contends the court should have refused her request because she did not admit committing another offense, and had been released on Proposition 36 probation. But her request implied she had committed another offense, and the record shows she committed a parole violation — i.e., another offense. Also, the court properly revoked her Proposition 36 probation because she committed a non-drug-related probation violation by failing to report to her probation officer. We affirm.
FACTS
In April 2006, defendant pleaded guilty to one count of possession of a controlled substance, methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Pursuant to Proposition 36, the court suspended imposition of sentence and placed defendant on three years formal probation on the condition she attend and complete a drug abuse treatment program. (Pen. Code, § 1210.1.)
“Proposition 36 ‘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. Johnson (2003) 114 Cal.App.4th 284, 293 (Johnson).)
All further statutory references are to the Penal Code.
In July 2006, the probation department notified the court that defendant had failed to report to her probation officer, had been arrested for a parole violation, and was currently imprisoned at the California Institute for Women in Chino.
In January 2007, defendant filed a request for disposition of probation. She waived her rights to counsel and presence in court. The court terminated defendant’s probation and sentenced her to 16 months in state prison, to run concurrently with any sentence she was already serving.
DISCUSSION
Section 1203.2a permits a defendant released on probation to ask the court in writing to revoke probation and impose sentence in his or her absence, if the defendant has been “committed to a prison in this state or another state for another offense.” The statute allows defendants to seek the benefit of concurrent sentencing. “Before section 1203.2a was enacted, if the court that granted probation was unaware of a defendant’s subsequent incarceration for another offense and had therefore failed to revoke probation, the defendant might serve the entire term for the other offense but still be subject, on revocation of probation, to serving the term for the offense for which he had been given probation . . . . [S]ection 1203.2a affords a procedure for requiring the court to consider imposing a concurrent sentence.” (In re White (1969) 1 Cal.3d 207, 211.)
Section 1203.2a provides, “[i]f any defendant who has been released on probation is committed to a prison in this state . . . for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined . . . and the warden . . . attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.”
Despite her unambiguous written request pursuant to section 1203.2a, defendant contends the court lacked authority to revoke her probation and impose sentence. In essence, she complains the court imposed an unauthorized sentence by granting her request. She raises two contentions. Neither has merit.
First, defendant contends her request was inadequate because she did not admit she had been committed to state prison “for another offense.” (§ 1203.2a.) But the statute requires only that defendant be imprisoned for another offense; it does not require that she expressly state so. At any rate, defendant impliedly conceded that she had been committed to state prison for another offense. Her request contains a warden’s attestation dated December 19, 2006, which states, “The date of commission of the crime(s) for which the defendant is currently undergoing sentence is 5/22/06.” Defendant signed the request on December 22, 2006. Defendant thus adopted the warden’s statement that she had been committed to state prison for an offense committed after she had been released on probation in April 2006 — i.e., for “another offense.”
Moreover, a parole violation is “another offense” for purposes of section 1203.2a, as defendant concedes. (In re Klein (1969) 197 Cal.App.2d 58, 61-62 [“section 1203.2a applies since petitioner’s return to prison for violation of his parole constituted a commitment ‘to a prison . . . for another offense’ within the meaning of the statute”].) Here, the record shows defendant had been committed to state prison for violating parole in another case. This parole violation constitutes “another offense,” and allows defendant to invoke section 1203.2a’s procedures.
Second, defendant contends that section 1203.2a cannot be used to revoke Proposition 36 probation. She maintains the court may revoke her probation and impose sentence only pursuant to section 1210.1. Even if so, that statute allows the court to revoke Proposition 36 probation for a single violation of a non-drug-related probation condition. (§ 1210.1, subd. (f)(2).) Here, the record shows defendant failed to report to her probation officer, which is a non-drug-related probation condition. (Johnson, supra, 114 Cal.App.4th at p. 300 [holding the defendant “had repeatedly violated a ‘non-drug-related’ condition of her Proposition 36 probation by refusing to report to her probation officer”].) We see no abuse of discretion in the court’s decision to revoke probation and impose sentence based upon defendant’s single non-drug-related probation condition, especially given defendant’s own request that the court do so.
Section 1210.1, subdivision (f)(2), provides, “[i]f a defendant receives probation under subdivision (a), and violates that probation . . . by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section.” The word “may” is permissive. While the court may remand defendant, gather input, and conduct further hearings, it need not do any of those. All it must do is “determine whether or not probation should be reinstated under this section.” (Ibid.)
Defendant relies heavily on the court’s reasoning for denying her motion to vacate the revocation of her Proposition 36 probation. The court decided her motion after she appealed — we will not consider its ruling.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.