Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM022852
BUTZ, J.After the trial court revoked defendant Wendell Tyrone Bullock’s probation, he was sentenced to two years in state prison for possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).)
Defendant appeals, contending that the trial court acted unlawfully in revoking his Proposition 36 probation on the ground that he had made himself unavailable for treatment. We shall affirm the judgment.
PROCEDURAL HISTORY
The facts underlying defendant’s conviction are not necessary to the disposition of the appeal. We summarize the procedural history leading up to his sentencing.
On August 8, 2006, defendant pleaded no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) On December 7, 2006, the trial judge suspended defendant’s sentence and placed him on three years’ probation pursuant to Proposition 36. (Pen. Code, §§ 1210.1 et seq.) Defendant requested that his probation be transferred from Butte County to Alameda County, where he lived. The judge authorized the transfer, and ordered defendant to report to the Butte County Probation Department to request a transfer to Alameda. The judge also ordered him to report to the Alameda County Probation Department, to enroll in drug and alcohol classes offered in that county, and to keep logs of the meetings he attended. The court scheduled a probation review hearing in Butte County for January 17, 2007.
Undesignated statutory references are to the Penal Code.
Undesignated calendar references are to the year 2007.
Defendant did report to the Butte County Probation Department to request a transfer. However, he never reported to the Alameda County Probation Department. On January 10, the Alameda County Probation Department denied courtesy supervision of defendant pending a transfer.
Defendant failed to appear in court on January 17 for his review hearing. The trial court revoked probation and issued a bench warrant for his arrest. However, it continued the review hearing until January 31, holding the arrest warrant in abeyance until then.
On January 31, defendant again failed to appear in court and the bench warrant for his arrest issued. On April 16, defendant was arrested in Alameda County and was returned to Butte County.
On July 11, defendant appeared in court for a probation violation hearing. He admitted he did not appear in court on January 17, but asked the court to reinstate his Proposition 36 probation because this was his “first violation.” After hearing evidence that defendant had no record of his treatment, had absconded from the court’s jurisdiction, and failed to contact his probation officer, the trial court found that “under the case of People v. Guzman [(2003) 109 Cal.App.4th 341] he has made himself unavailable for treatment and therefore has waived his right to [Proposition 36 probation], and probation will remain revoked.” On August 15, the trial court sentenced defendant to two years in state prison.
DISCUSSION
Defendant argues that the trial court abused its discretion by revoking probation under Proposition 36 because his “failure to appear in drug court is a drug-related condition of Proposition 36 probation and [he] was entitled to reinstatement of probation after his first violation.” We disagree.
On November 7, 2000, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, now codified as section 1210.1 et seq. (People v. Floyd (2003) 31 Cal.4th 179, 183.) Proposition 36 amended state law to require that “any person convicted of a nonviolent drug possession offense shall receive probation” (§ 1210.1, subd. (a)), conditioned on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment (Floyd, at p. 183).
Section 1210.1 was amended effective July 12, 2006 (Stats. 2006, ch. 63, § 7 (Sen. Bill No. 1137 (2005-2006 Reg. Sess.)); however, a preliminary injunction was issued on September 14, 2006, enjoining the People “‘from taking any action to implement, enforce or give effect to Senate Bill [No.] 1137 . . . until such time as a trial on the merits may be had or until further notice of this [c]ourt.’ (Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06-278911) [2006 WL 4717840].)” (People v. Hartley (2007) 156 Cal.App.4th 859, 861, fn. 1.) At the time of filing this opinion, the injunction was still in effect.
“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. [Citation.] 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. [Citation.] 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. [Citation.] Upon such a violation, the court regains its discretion to impose jail or prison time.” (In re Taylor (2003) 105 Cal.App.4th 1394, 1397-1398, fns. omitted.)
Importantly, section 1210.1, subdivision (b), lists five exceptions to eligibility under Proposition 36, including “[a]ny defendant who refuses drug treatment as a condition of probation.” (§ 1210.1, subd. (b)(4); People v. Esparza (2003) 107 Cal.App.4th 691, 696.)
In People v. Guzman (2003) 109 Cal.App.4th 341 (Guzman), the defendant accepted Proposition 36 probation, but then left the country, failed to appear in court, and failed to report to his designated drug treatment center. When the defendant appeared involuntarily in court on a bench warrant, his counsel argued (1) that his actions could not be deemed a refusal of treatment because he had accepted drug treatment at his sentencing hearing; and (2) that his probation could not be terminated, since his conduct constituted only a “first violation” of probation. (Id. at pp. 344-345.) The trial court revoked probation on the ground that the defendant had rendered himself unamenable for drug treatment. (Id. at p. 345.) The Court of Appeal affirmed, stating “the eligibility requirements continue to apply even after the initial grant of probation. To be sure, the trial court would be justified in terminating the probation of a defendant who commences drug treatment and who later advises the court he or she no longer wishes to continue in treatment and would rather serve time. It follows necessarily, then, that the trial court can terminate the probation of a defendant who, by his conduct following the grant of probation refuses to undergo drug treatment. Such a defendant is to be distinguished from a defendant who commences drug treatment and thereafter falters by violating conditions of probation. The transgressions of such a defendant would be analyzed as probation violations pursuant to section 1210.1, subdivision (e).” (Id. at p. 350,italics added.)
In People v. Johnson (2003) 114 Cal.App.4th 284 (Johnson), the trial court revoked the defendant’s Proposition 36 probation for failures to appear in court, to report to a probation officer, and to enroll in a drug treatment program as ordered. (Id. at p. 292.) The appellate court affirmed, concluding, “like the defendant in Guzman, [the defendant] demonstrated a ‘complete and unequivocal refusal to undergo drug treatment,’ thereby rendering herself ineligible for further probation under Proposition 36.” (Johnson, at p. 300.)
Here, defendant, like the defendants in Guzman and Johnson, “made no effort whatsoever to comply with his drug treatment probation.” (Guzman, supra, 109 Cal.App.4th at p. 349.) The trial court ordered him to report to the Alameda County Probation Department, to enroll in drug and alcohol classes offered by the county’s Mental Health or Behavioral Health department, to attend Narcotics Anonymous or Alcoholics Anonymous meetings twice a week, to keep a log of his meetings, and to test with parole and probation. Defendant did none of those things. He left the court’s jurisdiction, missed two court hearings and failed to appear in court until he was arrested and brought back to Butte County.
Defendant claimed that he enrolled in a substance abuse treatment program through Allied Services in Oakland and went to weekly meetings, but he was unable to provide the names or locations of the centers and did not have a log of the meetings as ordered by the court. Worse still, Allied Fellowship reported that it had “no knowledge of [defendant] attending treatment at the [Oakland] facility” and that the Alameda County Proposition 36 Behavioral Health Care Services reported that “defendant never scheduled an intake assessment or participated in alcohol or drug treatment through their agency.”
Defendant tries to distinguish Guzman by arguing that his “failure to appear at a court hearing is nothing more than the first drug-related violation that requires reinstatement to probation.” It is true that mere failure to appear in court constitutes a violation of a drug-related condition and by itself cannot form the basis for terminating a defendant’s Proposition 36 probation. (People v. Davis (2003) 104 Cal.App.4th 1443, 1447.) However, where a failure to appear is coupled with a complete failure to comply with any court-ordered directions for commencing rehabilitative treatment, a defendant may be deemed, “by his conduct,” to have rendered himself ineligible for treatment. (Guzman, supra, 109 Cal.App.4th at pp. 349-350; Johnson, supra, 114 Cal.App.4th at p. 300.) The trial court’s finding is further supported by the fact that defendant appeared in court only under compulsion, after being arrested. (Guzman, at p. 345; Johnson, at p. 300.)
We are not persuaded by defendant’s claim that his failure to avail himself of treatment was due to the fact that the Butte County Probation Department did not “initiate a treatment program” for him but rather “tried unsuccessfully to transfer the case to Alameda County.” Defendant did not comply with any of the court’s directions for commencing drug treatment. More than a month passed from the date probation was granted until the day that Alameda County notified Butte County that it would not accept courtesy supervision pending a transfer. During that time, defendant did none of the things he promised to do when he accepted drug probation. Instead, he absconded from the jurisdiction and failed to appear in court until he was arrested. By “disregarding the trial court’s orders and the requirements accompanying his grant of probation pursuant to Proposition 36,” defendant “evinced a complete and unequivocal refusal to undergo drug treatment.” (Guzman, supra, 109 Cal.App.4th at p. 350.)
Defendant is wrong in asserting that the trial court incorrectly relied on the People’s mischaracterization of the holding in Guzman. At the hearing, the prosecutor stated that under “Guzman, [i]f you’re gone more than 30 days, you’re deemed to have waived [Proposition 36 treatment].” We agree with defendant that Guzman does not stand for such a sweeping rule. However, the court did not rely on it. Instead, the court found, based on defendant’s conduct, that he had made himself unavailable for drug treatment probation within the meaning of Guzman.
Although defendant accepted drug treatment at his initial sentencing hearing, “the eligibility requirements [for Proposition 36] continue to apply even after the initial grant of probation.” (Guzman, supra, 109 Cal.App.4th at p. 350.) Because defendant’s “subsequent actions revealed the disingenuousness of his request for drug treatment” (id. at p. 349), the trial court did not violate Proposition 36’s statutory mandate in revoking probation (Guzman, at pp. 349, 350; see also Johnson, supra, 114 Cal.App.4th at p. 300.)
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, Acting P.J., HULL, J.