Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR908673, CR910773
Reardon, J.
Appellant Christina Patrina Boyer appeals from a judgment terminating her probation pursuant to Proposition 36, and sentencing her to prison for two years on a subsequent failure to appear charge plus a consecutive eight months on the underlying drug offense. We affirm the judgment.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was approved by the voters in December 2000. It is codified in Penal Code sections 1210, 1210.1, 3063.1 and section 11999.4 et seq. of the Health and Safety Code.
I. Factual Background
This is a case in which the timing and sequence of events is of some importance. Hence, the following linear overview:
1. The Lake County District Attorney filed a complaint (Super. Ct. No. CR908673) on March 13, 2006, charging appellant with possession of oxycodone and hydrocodone. Earlier that month, an anonymous caller had reported to the Lakeport police that a woman approached him at Library Park and asked if he wanted to smoke controlled substances. The caller described the suspect. An officer arrived, located the suspect, learned her identity and completed a warrant check. The check revealed that appellant had numerous out-of-county arrest warrants. Thirteen oxycodone tablets and one and one-half tablets of hydrocodone, without prescription, were located during a subsequent search.
All dates occur in 2006 unless otherwise indicated.
2. Appellant pleaded guilty to the offense on March 17, and the court placed her on probation for three years pursuant to Proposition 36. The court noted that “the D.A. and your attorney have agreed that you’re eligible for Prop. 36 probation.” It ordered appellant to report to her probation officer on March 20 “to set up your programs.”
3. On March 24 the court summarily revoked probation because appellant failed to report to her probation officer on March 20. On the appointed date, the probation officer learned that appellant was in custody on three out-of-county felony warrants and asserted he was unable to determine appellant’s eligibility for Proposition 36 probation due to those warrants. The court was now aware that there may have been a mistake as to whether appellant was “Prop 36 eligible.”
4. On April 7 the court continued the matter to determine if appellant was still eligible for Proposition 36 probation and referred it to the probation department for a supplemental report. Appellant was present and had informed her attorney that “she has a bed ready at DAAC.” The court released appellant on “OR” and ordered her to meet with her probation officer on April 10 for an interview and discussion about her treatment program.
5. On April 14 the probation officer proposed that the court restore the grant of probation and that appellant “be calendared 45 days out” to give appellant time to show proof that she was enrolled “in a Prop. 36 program.” Further, the officer indicated that if appellant failed to appear, “we should request a warrant be issued and that amenability be addressed.” Additionally, there were four, not three, out-of-county outstanding felony warrants: a felony burglary in Placer County; felony forgery in Humboldt County as well as drug-related charges. All of the matters were pending and unresolved.
The district attorney concurred with the recommendation, although he was skeptical that her four felony warrants could be cleared up within 45 days. The court cautioned appellant that she had “a difficult road ahead” in dealing with the four cases within 45 days, and if she did not, “you’re going to be violated” because the court would likely find her “not amenable to drug treatment.” Appellant admitted the former probation violation, the court reinstated probation and ordered appellant to return on June 9 to show proof of enrollment.
6. At the June 9 hearing for proof of program compliance, appellant’s attorney indicated that appellant was on probation in four different counties, had “everything cleared up” and would be able to show proof on July 7. The court continued the matter.
7. On July 7 the court determined that appellant was not amenable to Proposition 36 probation and set the matter for sentencing. At this hearing the probation officer informed the court that appellant had been out of custody since May 22 and, although she “showed up” on June 8 in an attempt to see him—he was out of the office—she did not thereafter telephone or contact the officer and had not enrolled “in a Prop. 36 program through my agency.” With regard to Placer County, appellant was “on felony probation for [section] 476 [passing bad checks], [section] 182 [conspiracy]” and “she was also put on misdemeanor” for a forgery county (§ 475). In Humboldt County, there was a pending case involving five counts of felony forgery and another involving drug offenses.
Appellant stated that she was still working on getting a Humboldt County warrant dismissed. The court remanded appellant to custody during the lunch break. Upon reconvening, the court indicated that officers found drugs in her purse.
8. Sentencing was set for August 4. Appellant requested a continuance to interview with the Delancy Street program about placement in the organization’s residential treatment program. Despite its earlier order, and over the objection of the district attorney, the court continued the sentencing hearing to September 1 so appellant could participate in the interview. The court explained that its “mind is not made up as to what is going to happen to you, but the more information I’m supplied the easier that decision will be.” Appellant was ordered to contact her probation officer by August 14 after meeting with the Delancy Street program.
9. Appellant failed to appear at the continued September 1 sentencing hearing. The probation officer related that appellant did meet with him on August 14 and handed him a flyer with a listing of residential treatment programs, with a person’s name and number written on it. Appellant told him she was on a waiting list for the Delancy Street program.
10. The Lake County District Attorney filed a second complaint (Super. Ct. No. CR910773) on September 28 charging appellant with failure to appear while released on her own recognizance. The complaint further alleged that appellant was released “on bail and Own Recognizance” within the meaning of section 12022.1.
11. Appellant pleaded guilty to the offense on December 15, with the condition that the special bail enhancement and a trailing misdemeanor would be dismissed.
12. In January 2007, the court sentenced appellant to the midterm of two years on the failure to appear and a consecutive eight-month term for the drug possession charge.
13. Appellant filed a timely notice of appeal and also requested a certificate of probable cause seeking to withdraw her guilty plea due to poor representation on the part of her attorney. The trial court denied the request. This court denied appellant’s petition for writ of mandate requesting that we order the trial court to issue a certificate of probable cause.
II. DISCUSSION
A. Termination of Probation
Proposition 36 requires that certain drug offenders receive probation, on condition of participation in and completion of an appropriate drug treatment program, in lieu of a prison term or probation without drug treatment. (People v. Floyd (2003) 31 Cal.4th 179, 183.) Section 1210.1, subdivision (a) mandates probation with a drug treatment condition to “any person convicted of a nonviolent drug possession offense” unless that person is ineligible because he or she comes within one of five categories of persons as set forth in subdivision (b). Under section 1210.1, subdivision (b)(4), “[a]ny defendant who refuses drug treatment as a condition of probation” is disqualified from Proposition 36 probation. Subdivision (d) of section 1210.1 further provides that within seven days of the court order imposing probation, the probation department must notify the designated drug treatment provider. In turn, within 30 days of such notice the provider must prepare and forward a treatment plan for the defendant to the probation department, court and counsel. (Ibid.)
A trial court’s initial grant of Proposition 36 probation carries with it an implied finding that the defendant accepts drug treatment as a condition of probation. (People v. Guzman (2003) 109 Cal.App.4th 341, 349.) In other words, by granting probation pursuant to section 1210.1, subdivision (a), the trial court necessarily determines that the defendant is not ineligible under subdivision (b). (Ibid.) Nonetheless, a defendant’s subsequent actions can belie the implied finding of acceptance of drug treatment probation. In Guzman, the defendant was placed on drug treatment probation in two separate cases and thereafter failed to comply with any of the trial court’s directives. Instead of reporting to his probation officer or the drug treatment facility as ordered, the defendant absconded from the jurisdiction of the court by leaving the country for five months to be with his mother, who was ill. Upon returning the defendant did not voluntarily report to his probation officer, the drug treatment center or the trial court. Upholding the trial court’s termination of drug treatment probation, the reviewing court concluded: “[T]his is not a case in which a defendant commences drug treatment and falters. This is not a case in which a defendant responded to a family emergency and then voluntarily reported to his probation officer for supervision or the drug treatment center for treatment. This is a case in which defendant, by his acts and omissions, evinced a complete and unequivocal refusal to undergo drug treatment. [¶] We hold that the eligibility requirements continue to apply even after the initial grant of probation. . . . [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.” (Id. at p. 350.) For all intents and purposes, such a defendant is ineligible for drug treatment. (Ibid.)
Appellant is adamant that the court improperly “revoked” her probation and that her admission to a violation of probation on April 14, 2006 was invalid.
Without question, the procedural history of this case is not a poster child for Proposition 36 compliance. The initial grant of probation in all likelihood was premature, given that none of the government actors had a full picture of appellant’s current standing within the tri-county criminal justice systems, and appellant did not disclose her outstanding felony warrants. The court’s insistence that appellant admit to a probation violation on March 20 for failure to report to her probation officer was questionable, given that the technicalities of section 1210.1, subdivision (f) for revoking probation were not strictly followed. However, appellant’s assertion that her admission was defective is moot because probation was reinstated and the court gave her the opportunity to comply with section 1210.1 by resolving her outstanding warrants and securing an appropriate drug treatment program. In other words, her admission did nothing to derail drug treatment. Appellant also argues that she did not willfully violate her probation. Appellant ignores her own complicity in failing to inform the court or her probation officer of the numerous outstanding warrants.
In any event, it is abundantly clear from the record that appellant never commenced a Proposition 36 treatment program, failed to obtain acceptance into a qualified program despite multiple continuances and failed to cooperate with her probation officer in finding an appropriate program. Notwithstanding generous continuances, appellant had not resolved all the outstanding felony charges. Additionally, on July 7 she was found in possession of drugs. Under Guzman, eligibility requirements continue to apply after the initial grant of probation. (People v. Guzman, supra, 109 Cal.App.4th at p. 350.) The above described history supports the trial court’s decision that appellant’s subsequent conduct, after the initial grant of probation, demonstrated that she was ineligible for Proposition 36 drug treatment under section 1210.1, subdivision (b)(4).
Appellant complains that she received no notice or opportunity to counter allegations that she was ineligible. Not so. It was repeatedly brought to appellant’s attention—on March 24, April 7 and April 14—that eligibility was at issue and she needed to resolve the outstanding warrants and enter a qualified program. Appellant was represented by counsel on each occasion. The probation officer’s written report also notified appellant that eligibility was in doubt. Appellant had plenty of time to address the issues and cure the problems, but she did not.
Appellant also urges that she was entitled to three drug-related failures and all the procedures set forth in section 1210.1, subdivision (f)(3) before the court revoked her probation. Among other authority she cites People v. Dagostino (2004) 117 Cal.App.4th 974, 993. This case is inapposite. In Dagostino, the defendant was placed on Proposition 36 probation and enrolled in a program, attending five of 19 scheduled sessions. The defendant sustained a probation violation, was reinstated and ordered to serve time in jail and report to probation mental health upon his release. The defendant failed to appear for his appointment with the mental health gatekeeper. The trial court ruled that this was a non-drug-related violation and excluded him from Proposition 36. (Id. at p. 984.) Nevertheless, it reinstated the defendant on probation and ordered him to serve nine months in jail followed by a custodial treatment program. The defendant appealed on grounds that he should not have been excluded from Proposition 36 because the violation was a drug-related condition of probation. (Id. at p. 985.) On appeal the People argued that, like Guzman, the defendant “grossly abused the Proposition 36 probationary scheme and impliedly refused drug treatment based on his conduct which resulted in the second probation violation.” (People v. Dagostino, supra, 117 Cal.App.4th at p. 995.) The reviewing court rejected this analysis because the trial court itself had disagreed with the probation officer’s recommendation that the defendant was unamenable to treatment. (Ibid.)
In contrast to the defendant in Dagostino, appellant never commenced treatment. Moreover, here the trial court explicitly found that appellant was unamenable to treatment based on conduct it impliedly deemed amounted to a refusal to accept drug treatment. The court’s ruling here is governed by section 1210.1, subdivision (b)(4), not subdivision (f).
Appellant also asserts that the court could not find her ineligible for Proposition 36 probation because it belatedly continued the sentencing hearing to allow her to participate in an interview with the Delancy Street program. First, the trial court’s equivocation did not amount to a finding of Proposition 36 eligibility or amenability to treatment. Second, appellant’s failure to appear at the sentencing hearing or to secure a placement erased any equivocation the trial court may have experienced and further supports its decision that appellant failed to meet Proposition 36 eligibility requirements.
B. Guilty Plea for Failure to Appear
Appellant challenges the validity of her guilty plea to the charge of failing to appear, arguing she was not properly in custody at the time she was released on bail. Appellant did not obtain a certificate of probable cause and hence this issue is not cognizable on appeal. Section 1237.5 provides that an appeal shall not be taken from a judgment of conviction on a guilty plea unless the defendant (1) provides the trial court with a statement showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceeding, and (2) the court issues a certificate of probable cause for the appeal. The certificate of probable cause serves an important purpose of weeding out frivolous appeals challenging convictions after guilty and nolo contendere pleas. Issues going to the validity of a plea require compliance with the statute. (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
Appellant contends nonetheless no certificate was required because the issue of the validity of her plea is closely related to, and dependent upon, her wrongful termination from Proposition 36 probation, for which no certificate is required. Appellant was not wrongfully terminated and this argument is unavailing.
C. Ineffective Assistance of Counsel
Appellant maintains her counsel provided ineffective service by permitting her to (1) admit to a probation violation based on failure to meet with her probation officer; (2) failing to object to the court’s termination of her from Proposition 36 probation; (3) after termination, failing to assert her right to a hearing on whether she was in violation of probation; and (4) allowing her to plead guilty to the failure to appear charge, and failing to investigate and present a defense to that charge. To prevail on any of the first three points, appellant must show prejudice, which she cannot. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) As to the fourth point, this again would require a certificate of probable cause because appellant is challenging the propriety of her plea. Without the certificate, her appeal on this point is inoperative. (People v. Stubbs (1998) 61 Cal.App.4th 243, 245.)
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J. Sepulveda, J.
All further statutory references are to the Penal Code.