Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Joseph R. Crisco, Judge. Reversed with directions. Super.Ct.No. FNE003536
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Mutton, Supervising Deputy Attorney General, and A. Natasha Corina, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
FACTS
On April 17, 2002, defendant, represented by counsel, pleaded guilty pursuant to a plea bargain to possession of a controlled substance, Demerol, (Health & Oaf. Code, § 11350, subd. (a)), and entry of judgment was deferred for 18 months so that defendant could participate in a drug program. (Pen. Code, § 1000 et seq.)
However, defendant failed to pay required fees and to provide proof of attendance in a program; and, on July 31, 2003, release on her own recognizance was revoked, criminal proceedings were reinstated, and a bench warrant issued. Defendant appeared on May 12, 2006, was ordered to appear on May 22, 2006, but did not appear.
Defendant appeared on June 1, 2006, was ordered to appear on June 13, 2006, and did. At that hearing, the trial court decided that defendant would not be granted probation under Proposition 36 (Pen. Code, § 1210 et seq.), apparently believing she was ineligible because of a 1999 misdemeanor conviction for driving under the influence.
The case was referred to probation for a report, and sentencing was set for July 11, 2006. The probation report recommended probation, and the prosecution recommended the maximum state prison sentence of two years; neither mentioned Proposition 36. Defendant appeared on July 11, 2006, but sentencing was continued to August 1, 2006, when defendant again failed to appear.
Defendant appeared on January 16, 2007, and sentencing was set for January 19, then January 23, and finally February 13, 2007. On this date the court sentenced defendant to the middle term of two years. (Health & Oaf. Code, § 11350, subd. (a); Pen. Code, § 18.)
DISCUSSION
On appeal, the parties agree that defendant had to be granted probation under Proposition 36. They agree that a misdemeanor drunk driving offense can disqualify a defendant for Proposition 36 probation only if it occurs within five years after a serious or violent felony. Accordingly, they also agree that, alone, the misdemeanor drunk driving offense does not disqualify a defendant from mandatory Proposition 36 treatment. The parties also agree that the trial prosecutor erroneously cited case authority in support of the incorrect position that the defendant’s misdemeanor driving under the influence disqualified her. Although the defendant’s previous performance under the deferral of judgment and failures to appear do not augur well for her success under Proposition 36 probation, she is nonetheless entitled to it. (Compare the amenability provisions for Proposition 36 probation in Pen. Code, § 1210.1, subd. (b)(4) [refuses drug treatment], (5) [two nonviolent drug possession convictions, two courses of drug treatment, and found unalienable].)
The relevant language states that “any person convicted of a nonviolent drug possession offense shall receive probation” (Pen. Code, § 1210.1, subd. (a)) unless the person “previously has been convicted of one or more violent or serious felonies [(Pen. Code, §§ 667.5, subd. (c), 1192.7, subd. (c))] . . . .” (Pen. Code, § 1210, subd. (b)(1).) The statute, as relevant here, goes on to provide that even a person with a prior violent or serious conviction must be given probation if “the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of . . . the commission of an offense that results in . . . a misdemeanor conviction involving . . . the threat of physical injury to another person.” (Ibid.) The statute does not disqualify defendant from mandatory treatment under Proposition 36 because her misdemeanor could have only disqualified her if it had been committed within five years after she had committed a violent or serious offense.
The principal case the prosecution cited does not support that position. (People v. Eribarne (2004) 124 Cal.App.4th 1463 (Eribarne).) In Eribarne the court held that a misdemeanor driving under the influence conviction disqualified the defendant because driving under the influence presented a danger of physical injury to the community and, therefore, involved, in the words of the statute, “the threat of physical injury to another person.” (Id. at pp. 1467-1468.) However, unnoted by the prosecutor was the necessary condition that the defendant in Eribarne had been convicted of first degree burglary, a serious felony (Pen. Code, § 1192.7, subd. (c)(18)), less than five years before the misdemeanor driving under the influence conviction. (Eribarne, supra, 124 Cal.App.4th at p. 1466.)
DISPOSITION
After a thorough and complete review of the record and briefs, we conclude that defendant should have been granted probation on February 13, 2007, instead of being sentenced to prison.
Therefore, the sentence is reversed, and the superior court is directed to grant probation under Proposition 36 and to commence the probation period (Pen. Code, § 1203.1(a)) as of February 13, 2007.
We concur: Hollerith, J., McKinster, J.