Opinion
D051314
8-29-2008
THE PEOPLE, Plaintiff and Respondent, v. GARY JAMES DONOVAN, Defendant and Appellant.
Not to be Published
Gary James Donovan appeals a judgment after the trial court revoked his probation and sentenced him to four years in prison. He contends that general statements made by the court during his sentencing hearing show it had a preconceived determination to reject under any circumstances his request for further probation or to be transferred to drug court because he had three drug-related probation violations. Donovan thus seeks remand under Penal Code section 1210.1, part of the Substance Abuse and Crime Prevention Act of 2000 (adopted by voters as Proposition 36, as amended in 2006 by the Legislature), for the court to exercise the discretion vested in it and determine whether he is amenable to further drug treatment or a transfer to drug court.
All statutory references are to the Penal Code.
We conclude the trial court properly exercised the discretion vested in it when it revoked Donovans probation and sentenced him to a four-year prison term. For reasons we shall explain, we reach this conclusion regardless of whether the amended or original version of Proposition 36 applies to Donovan. We thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, Donovan pleaded guilty to one count of possession of methamphetamine, a violation of Health and Safety Code section 11377, subdivision (a), and admitted he served a prior prison term. The court placed Donovan on Proposition 36 probation under the terms of a plea agreement, subject to the imposition of a "maximum punishment" of four years in state prison, a $ 10,000 fine and four years parole if Donovan failed to successfully complete drug treatment.
On November 30, 2006, Donovan admitted his first "drug-related" probation violation. Other than his admission it was drug-related, the record is silent regarding the reason or reasons for that violation.
As used here, the term "drug-related" means a "nonviolent drug possession offense" or a violation of a "drug-related condition of probation." (See § 1210.1, subd. (f)(3)(C).)
At a review hearing held on January 18, 2007, Donovan forfeited his right to an evidentiary hearing and admitted a second drug-related probation violation after testing positive for methamphetamine. In accepting Donovans admission, the court warned Donovan he had a "felony case" and was "getting close to the end" of Proposition 36 probation.
At the next review hearing, Donovan was accused of falsifying a drug test and leaving probation without completing that test, in violation of probation. The prosecutor argued Donovans probation should be immediately revoked. In response, Donovan represented he had a contagious staph infection that had prevented him from completing drug treatment. The court set the matter for hearing on March 28, 2007. Without objection by Donovan, the court found he was a danger to the community, revoked his probation and remanded him into custody pending the outcome of that hearing.
At the follow-up hearing held on March 28, 2007, Donovan forfeited his right to an evidentiary hearing and admitted a third drug-related violation based on his failure to cooperate with probation. Despite Donovans admission, the court said it wanted to hear from Donovan, who that same day had filed a "motion to continue probation" and had submitted letters from supporters asking that he be given one last opportunity to complete drug treatment. The court noted it had read the motion "several times" and considered the letters filed on behalf of Donovan.
Donovan argued he was denied a meaningful opportunity to participate in a drug treatment program because of the recurring staph infection. As a result of that infection, Donovan stated he was unable either to enter or complete drug treatment. With a 10-year history of drug abuse, Donovan claimed without such treatment he had little or no chance of overcoming drug addiction. Donovan also argued the infection had existed when he pleaded guilty in October 2006, that he had sought treatment for it and that he was no longer contagious.
Because another judge had been responsible for the courts calendar when Donovan admitted his first drug-related probation violation, the court recessed the hearing and instructed the probation department to check in Donovans file to determine whether that violation resulted from him being terminated from treatment because of the staph infection. The court noted a short delay in the hearing was necessary because "the quality of the decision is better than the immediacy of it," and because it would not take an admission of violation from a defendant terminated from drug treatment for reasons beyond his or her control. "Discharge from treatment has to be as a result of some sort of willful conduct by the defendant. [¶] You can be discharged from treatment because, for example, the person running the program does not like your race or something. You still are discharged, but thats not a violation, and so I want to know what the [probation] notes say, because if its not a violation I would have taken, then I want to consider that."
Based on information obtained from Donovans probation file, the court found Donovans first violation did not result from him being terminated from treatment because of the infection. Donovan also admitted that none of his probation violations resulted from him being terminated from treatment due to the infection. The court further found that Donovans last violation was for "out-and-out fraud"; that had it known about the infection when it accepted his plea Donovan may not have been eligible for Proposition 36 probation; that Donovan was attempting to "manipulate" the program by waiting five months to tell the court about the infection and his inability to complete treatment because of it; and that Donovan should have informed the court of the existence of the infection before his third violation. The court thus denied Donovans request to remain on probation.
At the sentencing hearing on May 30, 2007, Donovan again argued the staph infection had effectively prevented him from receiving treatment for drug abuse, and that he would benefit from increased supervision if sent to drug court. Donovan made a brief statement to the court, where he admitted his failure to complete treatment was not an excuse for using drugs, and that after spending time in jail he realized, "the reason Im here is for no other fault than my own."
In sentencing Donovan, the court rejected his request to avoid prison:
"[M]y longstanding belief and policy regarding drug court . . . I dont think that treatment is the proper punishment for failure in treatment. So if you come to Prop 36 and flunk out, you shouldnt get more treatment as punishment for flunking out of treatment. [¶] The other reason Im philosophically opposed to drug court after someone flunks out of Prop 36 is that through experience when I first took this program over four and a half years ago, all defendants had a belief that if they flunked out of Prop 36, they could automatically go to drug court because that was the policy before I took it over — took Prop 36 over. So nobody made any effort in Prop 36, because they didnt need to, because they could just go to drug court. So I wanted to establish that policy. [¶] I think its a good policy because it encourages people to comply with Prop 36 and also for the reason that I indicated, its just not a proper punishment. People can go to drug court before they go to Prop 36 if they want drug court. So Mr. Donovan chose not to go to drug court, and I dont think its appropriate now. [¶] Its not a probation case. . . . [¶][¶] The circumstances outlined in the probation report certainly indicate that the aggravating circumstances outweigh the mitigating circumstances. And he has the prison prior. [¶] So I dont see any other possible legitimate sentence other than an upper term relying on the — what I just said that the circumstances in aggravation greatly outweigh the circumstances in mitigation. [¶] Defendants conduct in the past has involved violence. His prior convictions are numerous. He served prison terms. Hes been a total failure on probation and parole — `total might not be the right word, but failure."
Based on these factors, including Donovans prior conviction for manslaughter after Donovan shot and killed his brother in what he described as an accident, the court sentenced Donovan to four years in prison, three years for pleading guilty to the underlying offense of possession of methamphetamine, a violation of Health and Safety Code section 11377, subdivision (a), and one year for a prison prior.
DISCUSSION
California voters passed Proposition 36 in the general election in November 2000. It is codified in sections 1210, 1210.1, and 3063.1, and Health and Safety Code section 11999.4. (See People v. Murillo (2002) 102 Cal.App.4th 1414, 1417.) "By replacing incarceration with community-based treatment, Proposition 36 work[ed] a sea change in Californias response to nonviolent drug possession offenses. In its prefatory statement, it states, `the People of California hereby declare their purpose and intent in enacting this act to be as follows: (a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration — and reincarceration of — nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (In re Taylor (2003) 105 Cal.App.4th 1394, 1397, quoting Prop. 36, § 3 [Purpose and Intent section].)
"To achieve the fundamental objectives of Proposition 36, `section 1210.1 places two important mandates on the trial court. First, assuming the defendant qualifies as a nonviolent drug offender eligible for drug treatment, the court must offer probation in lieu of a jail sentence. Second, and of even greater importance in attaining the objectives of Proposition 36, such probation must be conditioned on "participation in and completion of an appropriate drug treatment program." Thus, the ultimate objective of Proposition 36 is not to mandate probation in lieu of jail sentences. It is to substitute community-based drug treatment for jail sentences as a means of dissuading eligible offenders from continued drug use. As the voters were informed in the opening sentence of the ballot pamphlet summary, Proposition 36 "[r]equires probation and drug treatment," rather than incarceration, for simple drug possession offenses. [Citations.]" (People v. Muldrow (2006) 144 Cal.App.4th 1038, 1045; see also § 1210.1, subd. (a) ["any person convicted of a nonviolent drug possession offense shall receive probation"].)
I
Amendments to Proposition 36
Proposition 36 was amended by Senate Bill 1137 effective July 12, 2006. (Stats. 2006, ch. 63, § 7, pp. 1083-1088.) Proposition 36 allows amendments by the Legislature if approved by a two-thirds vote and when such amendments are to "further the act" and are "consistent with its purposes." (Prop. 36, § 9.) A group of plaintiffs challenged Senate Bill 1137 on constitutional grounds in Gardner v. Schwarzenegger, Superior Court Alameda County, 2006, No. RG06278911 (Gardner), alleging the Legislature violated article II, section 10(c) of the California Constitution, which forbids the Legislature from amending enactments made by voter initiative unless the amendments are consistent with the terms of the initiative itself. Plaintiffs alleged the incarceration provisions of Senate Bill 1137 were inconsistent with the purposes of Proposition 36 approved by the voters, as were the changes to those eligible for diversion under the initiative.
In September 2006, the trial court in Gardner granted plaintiffs request for a preliminary injunction, finding plaintiffs established a likelihood of success on the merits of their constitutional challenge to Senate Bill 1137. In May 2008, the court granted summary judgment for plaintiffs, concluding Senate Bill 1137 violated article II, section 10(c) of the California Constitution because the new statutes were inconsistent with the purposes of the initiative enacted by the voters.
Here, neither party raised in the trial court or on appeal the issue of whether the amended or original version of section 1210.1 should govern this matter. Donovan in his brief appears to rely on the amended version of section 1210.1. Our independent research shows that courts confronted with this issue tend to follow the former version of section 1210.1, "even though the amended version of the statute would otherwise apply" absent the preliminary injunction/summary judgment (People v. Enriquez (2008) 160 Cal.App.4th 230, 240, fn. 2; People v. Hazle (2007) 157 Cal.App.4th 567, 577, fn. 1 (Hazle)), and even though a trial courts ruling is not binding on a reviewing court. (See Ziller Electronics Lab Gmbh v. Superior Court (1988) 206 Cal.App.3d 1222, 1228 [the stare decisis doctrine "applies only to determine the binding effect of published decisions of appellate courts upon other cases," and it "is inapplicable to determining the effect of interim trial court rulings within the same action"].)
We say "appears" because Donovan in his brief quoted the language of subdivision (f)(3)(C) of section 1210.1 while citing to section "1210" and section "1210(C)"—neither of which applies here. (See Appellants Brief, at p. 9.) We nonetheless conclude subdivision (f)(3)(C) of section 1210.1 is the operative provision here.
We need not, however, decide this issue or seek additional briefing under Government Code section 68081 regarding its treatment. We conclude that regardless of whether the former or current version of section 1210.1 applies here, the court did not err in revoking Donovans probation and sentencing him to prison.
II
Consequences Under Section 1210.1 for Drug-Related Probation Violations
"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, supra, 105 Cal.App.4th at p. 1397.) Under the former version of section 1210.1, 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. [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 36s directive for treatment instead of incarceration. [Citation.] Upon such a violation, the court regains its discretion to impose jail or prison time." (Id. at pp. 1397-1398.)
Amended section 1210.1 follows the former version of this statute, inasmuch as it outlines a "detailed system of escalating sanctions for drug-related violations of probation" by a defendant. (In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1005 [referring to former § 1210.1, subd. (e)(3)]; cf. § 1210.1, subd. (f)(3).) As applicable here, under subdivision (f)(3)(C) of section 1210.1 for a third or subsequent drug-related violation, "the defendant is not eligible for continued probation under subdivision (a) unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions as the court deems appropriate." (Italics added.)
Thus, under amended Proposition 36, a repeat offender can be reinstated on probation even after a third or subsequent drug-related probation violation if "`the court determines that the defendant is not a danger to the community and would benefit from further treatment, in which case the trial court can intensify the treatment plan, including by imposing a jail term." (Hazle, supra, 157 Cal.App.4th at p. 577, fn. 1, quoting § 1210.1, subd. (f)(3)(C).)
III
The Trial Court Had No Discretion Under Subdivision (f)(3)(C) of Section 1210.1 to Order Donovan to Continue Drug Treatment or to Transfer Him to Drug Court
Donovan contends this matter should be remanded because the court abused its discretion by refusing in the first place to exercise the discretion allegedly vested in it under section 1210.1, subdivision (f)(3)(C), after he admitted a third drug-related probation violation. Donovan bases this argument on general comments made by the court during his sentencing hearing, when it revoked his probation, rejected his request to be sent to drug court, and sentenced him to a four-year prison term because he had "flunked" treatment under Proposition 36.
In interpreting section 1210.1, subdivision (f)(3)(C), we first look to the statutes words as those "`"generally provide the most reliable indicator of legislative intent."" (Bernard v. Foley (2006) 39 Cal.4th 794, 804; see also Diamond Multimedia Sys., Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047 (Diamond).) If the words are "clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it. [Citation.] `If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." (Diamond, at p. 1047; see also Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.)
Here, we conclude the plain language of subdivision (f)(3)(C) of section 1210.1 limits the courts traditional discretion to continue or revoke probation once a third drug-related violation is proved. Under that subdivision, the court has no discretion to continue Proposition 36 probation unless it finds (1) the defendant is not a danger to the community, and (2) the defendant would benefit from continued treatment. Only then, after the court makes such findings, may a court exercise its discretion to continue probation or transfer a defendant to drug court. (§ 1210.1, subd. (f)(3)(C).)
In light of the unambiguous language of subsection (f)(3)(C) of section 1210.1, we thus conclude under the circumstances here the court had no discretion to continue Donovans probation or transfer him to drug court. At the March 21, 2007 hearing when it revoked his probation, the court found Donovan was a danger to the community. Donovan did not object to this finding, nor did he offer any evidence in rebuttal at that hearing, the March 28, 2007 hearing and/or the May 30, 2007 hearing, when he was sentenced, to show that he was not a danger to the community. Donovan also has not challenged that finding on appeal, a point he conceded during oral argument. Because the trial court did not make the findings required under subdivision (f)(3)(C) of section 1210.1, we conclude it lacked discretion to continue Donovans probation or transfer him to drug court.
This lack of discretion distinguishes the instant case from People v. Penoli (1996) 46 Cal.App.4th 298 (Penoli), cited by Donovan. In Penoli, the issue was not whether the trial court had discretion to act, but rather whether it exercised that discretion in the first instance when it had a policy of requiring a defendant, as a condition of probation, to waive credit for time served in a residential treatment program. (Id. at p. 303.) Because the court here had no such discretion after it found Donovan was a danger to the community (§ 1210.1, subd. (f)(3)(C)), we conclude Penoli is inapposite.
Donovan neglected to inform this court that Penoli was, in any event, sharply criticized in People v. Torres (1997) 52 Cal.App.4th 771 (Torres), a matter we need not address here. In Torres, the court concluded Penoli "reached an erroneous result by effectively substituting appellate court discretion for that conferred by statute on the trial court; i.e., by fastening on the trial courts a mechanical, highly questionable rule gleaned from an irrelevant reading of the record in that case involving a colloquy between the court and counsel, and by failing to follow binding authority from our Supreme Court." (Torres, at p. 780.)
IV
Under Former Section 1210.1, Subdivision (e)(3)(C), the Court Did Not Err in Revoking Donovans Probation and Sentencing Him to Prison
Former section 1210.1, subdivision (e)(3)(C) provided:
"If a defendant receives probation under subdivision (a), and for the third time violates that probation either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a)."
Thus, under the previous version of section 1210.1, when a defendant violated a third time a drug-related condition of probation, the defendant was ineligible for continued probation under Proposition 36. (People v. Davis (2003) 104 Cal.App.4th 1443, 1447-1448 (Davis).) Once outside the protections of Proposition 36, the court then had the "full range of options otherwise available in a probation revocation proceeding, including imposing a term of incarceration as a new condition of probation or lifting the stay on a previously imposed term of incarceration." (Davis, at p. 1448; see also In re Taylor, supra, 105 Cal.App.4th at p. 1397 [upon a third drug-related probation violation "the court regains its discretion to impose jail or prison time"].)
Here, the evidence in the record shows the court carefully considered whether to continue or revoke Donovans probation at the March 28, 2007 review hearing. For example, it recessed that hearing and instructed the probation department to review Donovans file to determine whether his first drug-related violation resulted from him being terminated from treatment because of the contagious staph infection. In so doing, the court noted that another judge had handled the calendar when Donovan admitted his first violation; that a short delay in the hearing was necessary; and that it would not take an admission of violation from a defendant terminated from drug treatment for reasons outside the defendants control.
The evidence in the record further shows the court considered Donovans motion to continue probation and letters from supporters asking the court to give Donovan another opportunity to complete drug treatment before revoking his probation. The court found, however, that Donovans last probation violation—when he attempted to falsify a drug test and failed to cooperate with probation—was for "out-and-out fraud"; that had it known about the infection when it took his plea Donovan may not have qualified for Proposition 36 probation; that Donovan was manipulating the program by waiting five months to tell the court about the infection and his inability to complete treatment because of it; and that Donovan should have informed the court of the existence of the infection before his third probation violation.
In addition, the court found that the aggravating circumstances in Donovans probation report "greatly outweigh[ed]" the mitigating circumstances; that Donovan had several prior drug convictions and had served prison time; and that Donovans past conduct involved violence.
In light of such evidence, we reject Donovans contention that the court failed to exercise its discretion. Instead, the record shows the court carefully considered whether to continue Donovans probation, despite his three "drug-related" probation violations, based on his contention that the staph infection had effectively prevented him from receiving treatment for drug abuse. We thus are satisfied that on this record, the court exercised the discretion vested in it when it revoked probation and sentenced Donovan to prison for four years.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.