Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA071473, Joan Comparet-Cassani, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Ana R. Duarte and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
The primary issue on this appeal is whether substantial evidence supports the trial court’s finding that this defendant -- convicted of his thirty-second drug offense -- is not amenable to treatment under Proposition 36. We affirm.
VOGEL, J.
FACTS
The Prior Proposition 36 Cases. In March 2003, Buckner pled no contest to one count of possessing a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) Imposition of sentence was suspended and probation was granted as required by Proposition 36. Buckner thereafter admitted two probation violations, as a result of which his probation was twice revoked and twice reinstated.
In July 2004, Buckner pled no contest to another count of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and was again placed on three years formal probation under the terms of Proposition 36.
The Current Case. In September 2006, at which time he was still on probation in the 2004 case, Buckner was charged with one count of possessing a controlled substance, and one misdemeanor count of possessing a smoking device. (Health & Saf. Code, §§ 11350, subd. (a), 11364, subd. (a).) Following a pretrial evidentiary hearing, the court found that Buckner was not eligible for probation under Proposition 36 because he had failed two previous courses of drug treatment in the two prior Proposition 36 cases, and because his record included “42 arrests and 30 or so convictions for drug possession,” thus demonstrating that he was not amenable to any form of available drug treatment. (Pen. Code, § 1210.1, subd. (b)(5).) At the same hearing, the court rejected Buckner’s claim that, based on the finding of unamenability, subdivision (b)(5) of section 1210.1 compelled the court to impose a maximum sentence of 30 days in jail.
Subsequent undesignated section references are to the Penal Code.
Subdivision (a) of section 1210.1 provides that, notwithstanding any other provision of law and “except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation.” Pursuant to subdivision (b)(5) of section 1210.1, subdivision (a) does not apply to “[a]ny defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate course of drug treatment pursuant [to Proposition 36], and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. . . . Notwithstanding any other provision of law, the trial court shall sentence that defendant to 30 days in jail.” (Emphasis added.)
In December 2006, Buckner waived his rights, pled no contest to possession of a controlled substance, and the misdemeanor charge was dismissed. He was sentenced to state prison for a term of two years.
DISCUSSION
I.
Under subdivision (b)(5) of section 1210.1, a defendant is not eligible for Proposition 36 treatment if he has “ two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant [to Proposition 36], and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. . . .” (Emphasis added.) According to Buckner, he has not suffered two separate convictions because the probationary periods for the two prior offenses overlapped and (he claims) he had only one course of treatment. The record shows otherwise.
Buckner was charged in two separate cases with different case numbers. One plea was entered in March 2003, the other in July 2004. Two separate sentences were imposed, one in each case, so that he was twice granted probation. Separate orders were entered in each case. In short, there is nothing in the record to support Buckner’s conclusory assertion that the cases overlapped, or that he had only one course of treatment -- and he does not tell us on this appeal that he could prove any such thing. There is also the fact that Buckner offers no authority at all to support his position. In any event, at the time Buckner was sentenced, subdivision (c) of section 1210.1 required that a drug treatment referral be made within seven days of the trial court’s order, which presumptively occurred in both cases, once in March 2003, and once again in July 2004. (Evid. Code, § 664; People v. Yarter (1956) 138 Cal.App.2d 803, 805 [probation officer presumed to have done his duty].) And since a course of treatment under Proposition 36 could not exceed 12 months (§ 1210.1, subd. (c)(3)), the first treatment plan presumably concluded before the second plan began. There is no basis for Buckner’s claim of overlapping treatment.
II.
Alternatively, Buckner contends that, assuming he had two qualifying convictions and courses of treatment, the trial court nevertheless abused its discretion by finding he is unamenable to Proposition 36 treatment. We disagree.
A.
Although the trial court initially noted that Buckner’s drug history itself (“42 arrests and 30 or so convictions for drug possession”) shows his “severe problem” and his failure to take advantage of various drug treatments, the court held a hearing at which Buckner presented evidence in an attempt to show that he was, in fact, amenable to some drug treatment. To that end, his expert (William Woodbury, a certified chemical dependency counselor) testified that although Buckner was not amenable to out-patient treatment that did not include a 12-step program, he had a better than average chance of succeeding in a residential treatment program using a 12-step program (which Buckner had never attended). In the end, the most Woodbury could say was that Buckner seemed “willing to take a look at an alternative way to live,” and had a “better than average chance” of success provided he followed a residential program “to detail.”
B.
Proposition 36 was enacted by California’s voters (1) to establish an alternate sentencing scheme for certain nonviolent drug offenders by compelling trial courts to grant probation to qualifying offenders, conditioned on participation in and completion of appropriate drug treatment programs, (2) to enhance public safety by reducing drug-related crime, preserving jails and prison cells for serious and violent offenders, and (3) to improve public health by reducing drug abuse and drug dependence. (People v. Superior Court (Edwards) (2007) 146 Cal.App.4th 518, 520-521; People v. Goldberg (2003) 105 Cal.App.4th 1202, 1208.) Although many parts of Proposition 36 are mandatory, the decision about a defendant’s amenability under subdivision (b)(5) of section 1210.1 is one necessarily made in an exercise of the trial court’s discretion (People v. Budwiser (2006) 140 Cal.App.4th 105, 110) and that decision will be upheld if supported by substantial evidence (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849).
Substantial evidence supports the trial court’s decision that Buckner is not amenable to any form of treatment. Woodbury’s view was at best equivocal and was not in any event binding on the trial court. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633 [trier of fact may reject expert’s uncontradicted testimony so long as it does not do so arbitrarily]; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923-924 [trier of fact may disregard expert’s uncontroverted evidence and draw its own inferences from the facts].) Here, the facts spoke louder than the expert’s opinion. Buckner has served six state prison terms for drug-related crimes and has suffered more than two dozen additional convictions. He has a “severe drug problem” and did not comply with the conditions of probation in his two Proposition 36 cases. In short, substantial evidence supports the trial court’s finding that Buckner is not amenable to treatment.
Woodbury acknowledged that Buckner had been arrested 31 times for drug crimes over a 20-year period, and agreed that people who really want help with drug abuse problems seek out opportunities for assistance. He also agreed that anyone who wanted to participate in a 12-step program could simply “walk into an AA meeting on any given date.”
III.
We summarily reject Buckner’s contention that, assuming he is not amenable to treatment, his sentence was limited to 30 days in county jail by reason of the language in subdivision (b)(5) of section 1210.1. The language -- that assuming unamenability, “the trial court shall sentence that defendant to 30 days in jail” -- provides the minimum sentence for an unamenable drug offender, not the maximum. (See Horwich v. Superior Court (1999) 21 Cal.4th 272, 276; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [we give words their plain meaning in the context in which they are used]; People v. Bryant (1992) 10 Cal.App.4th 1584, 1600 [we will not interpret a statute in a manner that leads to absurd results].) We are confident that the electorate did not intend to reward incorrigible drug addicts by giving them what essentially would be a free pass for all future nonviolent drug possession offenses -- a maximum sentence of 30 days in jail.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.