Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge. Super. Ct. No. 06CM5558
Vangie C. Eidsvik-Garza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
OPINION
Appellant James Lee Brown was placed on probation pursuant to Penal Code section 1210 et seq., the Substance Abuse and Crime Prevention Act of 2000, commonly known as Proposition 36. His probation was later revoked and he was sentenced to eight years in prison. In this timely appeal, he seeks reinstatement of his Proposition 36 probation. For the reasons that follow, we conclude he is not entitled to relief and, accordingly, affirm.
All statutory references are to the Penal Code unless otherwise stated.
Because the original charges were resolved by plea and the first Proposition 36 violation without a hearing, some of the facts are taken from the preliminary hearing transcript, plea proceedings, revocation petitions, and probation officers’ reports.
Original Nonviolent Drug Offenses
On December 8, 2006, a parole officer searched appellant and found a hypodermic syringe and a small plastic container that held methamphetamine. Appellant appeared to be under the influence of a stimulant, and his urine tested positive for amphetamine, methamphetamine, and PCP.
As a result, appellant was charged by amended information with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), using and being under the influence of a controlled substance (id., § 11550, subd. (a); count 2), and possessing a hypodermic needle and syringe (Bus. & Prof. Code, § 4140; count 3). As to count 1, it was alleged that appellant had suffered a prior “strike” conviction for burglary (§§ 459, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served six prior prison terms (§ 667.5, subd. (b)). Appellant pleaded no contest to the charges and admitted all special allegations. It was subsequently determined that the prior burglary conviction was not a strike, so that appellant was eligible for Proposition 36 sentencing. Accordingly, on June 19, 2007, imposition of sentence was suspended and appellant was placed on probation for three years on various terms and conditions.
First Proposition 36 Violation
On January 8, 2008, the Kings County Probation Department filed a petition to revoke appellant’s probation, alleging that, on December 17, 2007, appellant tested positive for methamphetamine and the metabolite of marijuana. On January 14, the petition was amended to further allege that, as of that date, appellant had been discharged from his substance abuse program for excessive absences. Because the violations were alleged to be drug-related, it was recommended that probation be revoked and appellant be reinstated on Proposition 36 probation. On January 29, appellant admitted the January 14 violation, and the January 8 violation was withdrawn. On March 3, appellant was reinstated on Proposition 36 probation over the People’s objection that his admitted program failure constituted a refusal to participate, thereby rendering him ineligible.
Second Proposition 36 Violation and Termination of Probation
On May 15, 2008, the Kings County Probation Department filed a second petition to revoke appellant’s probation, alleging that appellant (1) failed to report for a random drug test as directed on April 23, 2008; (2) failed to check in with his probation officer during the first 10 days of May as per his reporting instructions and failed to report as directed on May 13, 2009; and (3) failed to make payments on his court-ordered fees and fines despite reporting employment. Because the violations were alleged to be non-drug-related, it was recommended that probation be revoked and appellant be denied reinstatement on Proposition 36 probation.
On June 27, a contested hearing was held. At the outset, the prosecutor struck the allegation of failure to pay and elected to proceed only on the remaining allegations. The prosecutor and probation officer took the position that the alleged April 23 violation was drug-related, as it was specifically for a drug test, but that the alleged May violation was not. The issues with respect to the alleged May violation, as summarized by the trial court, were whether appellant reported appropriately and whether the incident was drug-related.
The court took judicial notice of the terms and conditions of appellant’s probation. The People then presented the testimony of Mr. Tunison, who had been appellant’s probation officer since August 8, 2007. According to Tunison, appellant was required to report to the probation department between 8:30 a.m. and 11:30 a.m., on any working day between the first and the 10th of odd months of the year. He should have, but did not, report in September and November 2007. Tunison had discretion whether to pursue this as a probation violation, and did not do so. Appellant’s next required reporting would have been in January 2008, but in that month, Tunison sent him back to court on a violation for a dirty drug test. Appellant was not required to report in January or March 2008, because he was still going through the court process on the violation. As he was reinstated on probation, he had a new intake appointment in April, so May would have been his first time to report after that.
On April 23, 2008, Tunison performed a home contact at appellant’s residence. Appellant was home, and Tunison told him that he needed to report to the probation department at 4:00 p.m. that day to provide Tunison with a urine sample for a drug test. Appellant indicated he understood. Appellant did not report at 4:00 p.m., however. At approximately 4:14 p.m., Tunison received a telephone call from appellant, who stated he was experiencing car trouble and was stranded, and so he would not be able to make it in for his 4:00 p.m. appointment. Tunison told appellant that he would extend the deadline to 5:00 p.m., but that appellant was still responsible for reporting. Although Tunison was unable to recall the specifics of what he told appellant, he did state that appellant was in violation of his probation. Appellant did not show up at 5:00 p.m. Tunison, who left the office that day at approximately 5:05 p.m., did not talk to appellant any more about it that day, or do anything further with respect to having appellant test for drugs. That day “was it as far as testing.”
On May 12, 2008, Tunison attempted another home contact at appellant’s residence. When he arrived, nobody answered the door. Tunison left notice on the door to report for a check-in the following day, May 13, at 8:00 a.m. Appellant did not report. On May 13, Tunison had telephone contact with appellant and advised him of his court date for failing to report. Appellant said he was working and was unable to report to some degree. Tunison informed him that there was going to be a violation, and he gave appellant a court date.
Tunison was unable to recall who contacted whom.
The bimonthly reporting requirement was independent of any directions Tunison gave appellant for testing. The April 23 incident was a random home contact and test. The May 12 contact was a result of appellant not reporting May first through 10th.
Appellant testified that on April 23, Tunison came to his house and told him that he needed to report by 3:00 p.m. to give him a test. When appellant said that he had to go to Tulare to get some parts for a riding lawn mower and had to have somebody take him, Tunison extended the deadline to 4:00 p.m. Appellant made the trip to Tulare, and the truck broke down. At 4:14 p.m., he telephoned Tunison and told him that he had had vehicle problems and would not be able to make the 4:00 appointment. Tunison responded that if appellant was not there by 5:00 p.m., appellant would have to explain it to the judge, as he was in violation. Appellant arrived at the probation department at 5:15 p.m., but the doors were locked.
Appellant, who had his own little business, had a restricted driver’s license and so had to pay someone to drive him around.
Appellant’s understanding at this point was that he was in violation. He had been violated before, and was aware that everything was suspended and he had to come and see the judge concerning the matter. He did go to the probation department about noon on April 24 to talk to Tunison, but Tunison was out to lunch. Appellant spoke to a receptionist at the window and explained the situation to her, and she said it sounded as if he was in violation. Appellant was aware that he needed to report between the first and 10th of the month, but did not go because he thought he was in violation just like he had been in January. In January, he had not gone in because the terms of his probation were being violated. Appellant never saw any note Tunison left; when appellant arrived home on May 12, there was no note. Appellant had had problems with neighbor youngsters, and it was not possible to contact him by leaving a note at the house. Tunison had appellant’s phone number; Tunison telephoned him on May 13, said he had been out to appellant’s house the day before, and gave him a court date.
At the conclusion of the hearing, the prosecutor argued that appellant’s attitude was not conducive to complying probationary terms and conditions, and that he did not take responsibility for his actions and instead decided on his own that he did not have to comply. Defense counsel conceded that the April 23 incident was a violation, but argued that the May failure to report was not willful because appellant believed he did not need to report then because his probation was being violated.
The court found appellant willfully violated the terms and conditions of his probation as to both the April 23 and May incidents. It subsequently sentenced him to an aggregate term of eight years in prison.
DISCUSSION
Appellant asserts a number of reasons why, in his view, he was entitled to be reinstated on Proposition 36 probation. We conclude that, because appellant had only had two periods of such probation, he was indeed eligible for reinstatement. Because he violated a non-drug-related probationary condition, however, reinstatement was not mandatory, and the trial court did not abuse its discretion by sentencing him to prison instead of continuing him on probation. Our conclusion in this regard renders appellant’s other claims moot.
In People v. Dagostino (2004) 117 Cal.App.4th 974, 987-988 (Dagostino), this court summarized the applicable law as follows:
“A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme. [Citations.] For such a defendant, Proposition 36 supersedes the trial court’s general power to revoke probation.… [Citations.] ‘Different rules apply depending on whether a defendant violates a non-drug-related or drug-related condition of probation.’ [Citation.] ‘Anticipating 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. The first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. (§ 1210.1, subd. (e)(3)[(A)].) The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. (§ 1210.1, subd. (e)(3)[(B)].) Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36’s directive for treatment instead of incarceration. (§ 1210.1, subd. (e)(3)[(C)].) Upon such a violation, the court regains its discretion to impose jail or prison time. [Citation.] Proposition 36 does not, however, extend the same grace to probationers who violate non-drug-related conditions of probation. The first time a probationer violates such a condition, the court has discretion to incarcerate the person. (§ 1210.1, subd. (e)(2).)’
“The prosecution has the burdens of producing evidence and of persuasion that defendant’s violation ‘did not involve a drug-related condition of probation.’ [Citation.] Section 1210.1, subdivision (f) states: ‘The 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.’
“Thus, a defendant may be excluded from the provisions of Proposition 36 … if his or her probation violation was not drug related. [Citation.] ‘[A] defendant who has violated a non-drug-related condition of probation loses the “grace” granted to probationers otherwise subject to Proposition 36. [Citation.] At that point, the defendant stands in the same shoes as any other probationer and he is subject to whatever sentencing statutes bear on his sentencing.’ [Citation.] The court then has the full range of options otherwise available in the probation revocation proceeding.… [Citation.]”
Dagostino describes the 2001 version of section 1210.1. Effective July 12, 2006, the statute underwent a major revision pursuant to Statutes 2006, chapter 63, section 7 (Sen. Bill No. 1137). Some subdivisions were relettered (for example, subd. (e) became subd. (f)), and a defendant who violated a third or subsequent drug-related condition of probation was rendered presumptively ineligible for continued Proposition 36 probation, but could be continued on such probation if the court determined that he or she was not a danger to the community and would benefit from further treatment. On July 14, 2008, judgment was entered in the Alameda County Superior Court, enjoining implementation and enforcement of Senate Bill No. 1137 and declaring said enactment invalid in its entirety. (Gardner v. Schwarzenegger, Super. Ct. Alameda Co., No. RG06-278911; see People v. Hazle (2007) 157 Cal.App.4th 567, 577, fn. 1.) The matter currently is on appeal. (Gardner, et al. v. Schwarzenegger, et. al., A122920, A125000.) As the statutory provisions remain substantively unchanged (at least for our purposes) with respect to first- and second-time violators and those who violate non-drug-related probationary conditions, we need not determine whether the Alameda County Superior Court’s action is binding on respondent for purposes of this case. (See Regents of University of California v. Superior Court (1990) 225 Cal.App.3d 972, 976.)
Respondent agrees with appellant’s assertion, as do we, that appellant was a second-time violator, despite the fact multiple violations were alleged in the May 15, 2008, revocation petition. As such, appellant was eligible for continuation of Proposition 36 probation. (People v. Enriquez (2008) 160 Cal.App.4th 230, 239 [what matters is not how many violations were alleged, but how many separate noticed motions to revoke were properly before trial court]; People v. Hazle, supra, 157 Cal.App.4th at pp. 575-576 [same]; People v. Tanner (2005) 129 Cal.App.4th 223, 227, 234-236 [same].) Based on the paucity of the trial court’s express findings, appellant suggests the court may have thought the petition’s multiple allegations constituted second or third violations. Absent evidence to the contrary, however, we presume a trial court has properly followed established law. (People v. Diaz (1992) 3 Cal.4th 495, 567; Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) No such evidence exists here, especially since Enriquez, Hazle, and Tanner were all decided before the June 27, 2008, hearing in appellant’s case.
Accordingly, we turn to whether the bimonthly reporting requirement was non-drug-related, and whether appellant’s violation of that condition was willful. Although the trial court made no express findings on either point, “[i]f 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.]” (People v. Dove (2004) 124 Cal.App.4th 1, 10.) Facts supporting revocation of probation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439, 441.)
The People have the burden of proving the condition was not drug-related. (People v. Atwood (2003) 110 Cal.App.4th 805, 811-812.) Where the probation violation is a failure to appear for an appointment to be tested for drugs, the appointment is a drug-related condition. (In re Taylor (2003) 105 Cal.App.4th 1394, 1399, fn. 7.) By contrast, a general condition of probation requiring a defendant to report to his or her probation officer is not necessarily drug-related. (Id. at pp. 1398-1399 & fn. 7; People v. Dixon (2003) 113 Cal.App.4th 146, 152.) “Probation officers may require defendants on probation for drug-related offenses to meet with them for non-drug-related purposes. For example, such appointments might be related to a probationer’s obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally.” (In re Taylor, supra, 105 Cal.App.4th at p. 1399, fn. 7.)
When appellant was reinstated on probation in March 8, 2008, following his first Proposition 36 violation, he was ordered, inter alia, to report to the probation department as directed and follow all reasonable directions of the probation officer; to seek and maintain gainful employment; to obey all laws; not to change his address without permission of the probation officer; to report to the probation department immediately after each court appearance; not to own, possess, or purchase any firearms; not to operate a motor vehicle during the period of probation unless properly licensed to drive and in compliance with state insurance regulations; and to pay various fees and fines. Even if we assume the employment requirement fit within Proposition 36’s definition of a drug-related condition, the other conditions did not. Thus, the court reasonably could have concluded that the direction of the probation department requiring appellant to report during the first 10 days of every other month, was a non-drug-related condition, especially in light of Tunison’s testimony that this reporting requirement was independent of any directions he gave appellant for testing and that, after appellant missed his April 23 testing appointment, Tunison did nothing further with respect to having appellant test for drugs. (See People v. Johnson (2003) 114 Cal.App.4th 284, 297-300.)
If the evidence supports a conclusion appellant’s violation of the non-drug-related reporting condition was willful, then the trial court was within its discretion in sentencing him to prison rather than continuing him on Proposition 36 probation. (See People v. Galvan (2007) 155 Cal.App.4th 978, 982.) Because what is at issue is a failure to report, appellant must have actually known he was required to report. (People v. Garcia (2001) 25 Cal.4th 744, 752; People v. Davis (2005) 126 Cal.App.4th 1416, 1435-1436.)
On March 8, 2008, appellant signed an acknowledgement that he had read, or had had read to him, and understood the conditions of his probation and that the court could sentence him to prison if he violated any of them. In his testimony at the June 27 hearing, appellant admitted he was aware he needed to report between the first and 10th of May. His explanation was that he did not do so because he thought he was in violation, like he had been in January, when everything was suspended during the court process.
There was ample reason for the court to reject, as not credible, appellant’s claimed lack of knowledge. Appellant had failed to report in September and November 2007, which placed him in violation of a term of his probation, yet Tunison took no action against him at that time and, as is apparent from the allegations contained in the January 14, 2008, revocation petition, appellant continued to drug test and participate in treatment. It was not until a petition for revocation was actually filed and appellant given a court date in January 2008, and while the court process was continuing in March, that the reporting requirement was suspended. The trial court reasonably could have concluded appellant knew it took more than a violation of a term of his probation or being told he was in violation to suspend the reporting requirement; instead, it took formal, written action by his probation officer, which was not undertaken until after the 10-day period in May in which appellant was supposed to report.
Moreover, appellant’s history showed a lackadaisical attitude toward complying with his reporting requirements. Appellant’s initial intake appointment with the probation department was in August 2007. He failed to report in September and November, was excused from reporting in January and March, and then again failed to report in May. In other words, he missed every required monthly reporting assignment. In addition, even assuming his failure to report for a drug test on April 23 was the result of car trouble, it was irresponsible of him to go out of town at a time when something like mechanical problems could cause him to miss his appointment, and then to fail to contact his probation officer until almost 15 minutes after he was due to test. (Contrast People v. Zaring (1992) 8 Cal.App.4th 362, 377-379 [probation revocation constituted abuse of discretion where trial court accepted appellant’s explanation for being 22 minutes late to court; appellant was confronted with last-minute unforeseen circumstances involving her parental responsibility, and nothing in record supported conclusion her conduct was result of irresponsibility, contumacious behavior, or disrespect for court’s orders].) Under the circumstances, the trial court reasonably could have concluded appellant was aware he was required to report, and simply chose not to.
Substantial evidence supports the trial court’s implied finding that appellant willfully violated a non-drug-related condition of his probation. (See People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) It follows that appellant was not entitled to be reinstated on Proposition 36 probation, and the trial court did not abuse its discretion by imposing a prison sentence instead.
DISPOSITION
The judgment is affirmed.