Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC599277.
Premo, J.
Defendant Patrick Francis Byrnes appeals from an order revoking probation under Proposition 36 (Pen. Code, § 1210.1 et seq.) and placing him on three years regular probation. He contends that the court failed to exercise its discretion because it failed to apply the applicable law. We disagree and affirm the order.
Further unspecified statutory references are to the Penal Code.
LEGAL BACKGROUND
The Substance Abuse and Crime Prevention Act of 2000, enacted by the voters in Proposition 36, added sections 1210 and 1210.1 to the Penal Code. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1112.) It “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. Floyd (2003) 31 Cal.4th 179, 183.) The principal purpose behind Proposition 36 was to divert into treatment persons whose only offenses were nonviolent drug possession offenses. (People v. Dagostino (2004) 117 Cal.App.4th 974, 986.) Under Proposition 36, a defendant who is convicted of a nonviolent drug possession offense is generally placed on probation rather than being sentenced to imprisonment, on condition of completing a drug treatment program. (§ 1210.1, subd. (a).) “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.” (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.) It includes specific rules to be applied when a defendant granted probation with a drug treatment condition violates a condition of probation. (People v. Guzman (2003) 109 Cal.App.4th 341, 347.) Different rules apply depending on whether the defendant violates a “drug-related” or “non-drug-related” condition of probation. (Id. at p. 348.)
As originally enacted and as relevant to this case, Proposition 36 provided that (1) the first time an offender violates a drug-related condition of probation, he is entitled to be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, (2) 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, and (3) the third time he violates a drug-related condition of probation, he loses the benefit of Proposition 36’s directive for treatment instead of incarceration. (See People v. Hazle (2007) 157 Cal.App.4th 567, 572-573; People v. Enriquez (2008) 160 Cal.App.4th 230, 239-240.) But Proposition 36 was amended by the Legislature, effective June 12, 2006, to allow a continuance of Proposition 36 probation to a third-time, drug-related-condition violator if the trial court finds that the defendant is not a danger to the community and would benefit from further treatment. (§ 1210.1, subd. (f)(3)(C); Stats. 2006, ch. 63, § 7.)
FACTUAL BACKGROUND
Defendant pleaded no contest to possession of methamphetamine, being under the influence of methamphetamine, and possession of drug paraphernalia. The trial court imposed three years of probation under Proposition 36with terms and conditions including drug testing and reporting requirements. In April 2006, defendant admitted that he had violated probation by failing to comply with the drug-testing order. In June 2006, defendant admitted that he had violated probation by failing to comply with the drug-testing order and testing positive for methamphetamine. In February 2007, the trial court found that defendant had violated probation for the third time by attempting to use a prosthetic device to give a false test.
DISCUSSION
Defendant contends that the record does not show that the trial court was aware of the June 2006 amendment to Proposition 36, which gave trial courts the option of reinstating probation for some “three-strike” probationers upon findings that the defendant posed no danger to the community and would benefit from further treatment. He concludes: “As the record in this matter is silent as to the court’s knowledge that it possessed the discretionary powers to find a third violation of [defendant’s] probation and thereafter continue [defendant] in Proposition 36 treatment, remand is required in order that the trial court may exercise its statutory authority . . . .” There is no merit to this claim.
First, the new statute is inapplicable to this case. “[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 1137 . . . until such time as a trial on the merits may be had or until further notice of this court.’ (Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06-278911).)” (People v. Hartley (2007) 156 Cal.App.4th 859, 861, fn. 1.) “The injunction is based on the apparent fact that portions of the bill arguably thwart the intent of the People as expressed in Proposition 36.” (People v. Hazle, supra, 157 Cal.App.4th at p. 577, fn. 1; see also People v. Enriquez, supra, 160 Cal.App.4th at p. 240, fn. 2 [“we apply the former version of [Proposition 36], the version that was in effect before the amendment the Legislature enacted in 2006 [because] even though the amended version of the statute would otherwise apply to this case based on the date of the sentencing hearing . . ., enforcement of the bill containing that amendment has been enjoined by the Alameda County Superior Court”].) That injunction is still in effect. Thus, the trial court was required to follow Proposition 36 as originally enacted, which does not allow reinstatement for “three-strike” probationers such as defendant.
Second, defendant’s argument is patently insufficient even if the June 2006 amendments to Proposition 36 were the applicable law. The general rule is that “[o]n a silent record, the ‘trial court is presumed to have been aware of and followed the applicable law’ when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion.” (In re Jacob J. (2005) 130 Cal.App.4th 429, 437-438.)
DISPOSITION
The order revoking Proposition 36 probation and placing defendant on regular probation is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.