Opinion
F041548.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. TERESA GARCIA, Defendant and Appellant.
John R. Hargreaves, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Justain P. Riley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT *
In April 2002, appellant Teresa Garcia pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a felony, and driving while under the influence of alcohol and/or drugs (Veh. Code, § 23152, subd. (b)), a misdemeanor. The court suspended imposition of judgment and placed appellant on formal probation, pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) (Pen. Code, § 1201 et seq.). In August 2002, in another case, appellant pled no contest to driving under the influence of methamphetamine (Veh. Code, § 23152, subd. (a)), and shortly thereafter, the probation officer filed a report recommending that appellants probation under Proposition 36 be revoked. In September 2002, at the hearing on the alleged probation violation, appellant admitted suffering the Vehicle Code section 23152, subdivision (a) violation, and the court ordered that her probation under Proposition 36 be revoked and that she be placed on formal probation pursuant to section 1203 for a period of three years, with various terms and conditions, including that she serve 180 days in county jail, with credit for time served of four days.
Except as otherwise indicated, all further statutory references are to the Penal Code.
On appeal, appellant contends the court erred in revoking appellants Proposition 36 probation. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual discussion is limited to the facts of the instant probation violation. The facts of the offense which led to the initial grant of probation are not relevant to the issues raised on appeal.
On June 26, 2002, at approximately 9:10 p.m., a police officer stopped a motor vehicle driven by appellant after noticing that the vehicle did not have a license plate light. After the officer made the stop, appellant told the officer she had smoked "a lot" of methamphetamine at approximately 5:00 p.m. It was determined appellant was under the influence of methamphetamine.
Procedural Background
Proposition 36 mandates probation and drug treatment and prohibits incarceration for any person convicted of a "nonviolent drug possession offense," unless the person is disqualified from probation under other provisions of the law. (§ 1210.1, subd. (a).) In a subsection entitled "[n]on-drug-related probation violations," section 1210.1 provides that the court "may modify or revoke probation" granted under Proposition 36 if the probationer commits "an offense that is not a nonviolent drug possession offense . . . ." (§ 1210.1, subd. (e)(2).) However, the statute further provides, in a subsection entitled "[d]rug-related probation violations," that if the probationer violates Proposition 36 probation by committing a "nonviolent drug possession offense," the court "shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others." (§ 1210.1, subd. (e)(3)(A).)
At the hearing on the alleged violation of probation, appellant admitted she had suffered a conviction of driving while under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a) (DUI). Defense counsel argued as follows: appellants DUI was a "nonviolent drug possession offense" within the meaning of subdivisions (e)(2) and (e)(3)(A) of section 1210.1; appellant did not pose a danger to society; and therefore probation should not be revoked. The court, in rejecting this argument, ruled as follows: "With respect to the alleged violation in this case, it is not predicated on the fact this is not a drug related violation, but rather that Mrs. Garcias action in getting behind the wheel of a vehicle and driving at a time when, by her own admission, referring to the police reports in this case attached to the Public Defenders motion, she had smoked a lot of crank on that day, poses a danger to the safety of others, and that is this courts opinion as well. Recognizing that Prop 36 and the intent behind Prop 36 was to provide treatment for the illness of substance abuse addiction, there is no illness of driving under the influence while one is intoxicated, that requires a volitional act well beyond any compulsion to use the drugs. The fact that in this case Ms. Garcia was stopped for a violation on not having her license plate light working, or what [defense counsel] describes as a fix-it ticket, does not defeat or does not obviate the danger inherent when someone under the influence of drugs or alcohol gets behind the wheel of a car."
DISCUSSION
On appeal, appellant renews her contention that DUI is a "nonviolent drug possession offense"; section 1210.1, subdivision (e)(3)(A) authorizes revocation of Proposition 36 probation based on the commission of such an offense only if the People prove the probationer poses a danger to the safety of others; the People failed to make the required showing; and therefore the court erred in revoking appellants Proposition 36 probation. We disagree.
Subdivision (a) of section 1210 provides as follows: "[t]he term `nonviolent drug possession offense means the unlawful possession, use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term `nonviolent drug possession offense does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8."
"In ascertaining the Legislatures intent, we turn first to the language of the statute, giving the words their ordinary meaning." (People v. Birkett (1999) 21 Cal.4th 226, 231.) When we give the language of subdivision (a) of section 1210—especially the word "means"—its ordinary meaning, we find this definition to be clear and unambiguous: Nonviolent drug possession offenses are possession, use, transportation, and being under the influence of a controlled substance. DUI is not among the crimes expressly listed in section 1210, subdivision (a) as nonviolent drug possession offenses.
Moreover, driving under the influence of a controlled substance is conduct that goes beyond mere "possession, use, . . . transportation for personal use [or] being under the influence of any controlled substance . . . ." (§ 1210, subd. (a).) On this point we find instructive People v. Goldberg (2003) 105 Cal.App.4th 1202. In that case the defendant committed a nonviolent drug possession offense and a misdemeanor violation of Vehicle Code section 23152, subdivision (a). The appellate court held the latter offense disqualified appellant for treatment and probation under Proposition 36 under a provision of the law rendering ineligible any otherwise eligible person who, in the same proceeding in which he or she is convicted of a nonviolent drug possession offense, is also convicted of "a misdemeanor not related to the use of drugs" (§ 1210.1, subd. (b)(2)), statutorily defined as "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)" (§ 1210, subd. (d)). The court held, "[w]hile driving under the influence, even of methamphetamine, may involve the simple possession or use of drugs and `activit[ies] similar, it also involves the additional act of driving a motor vehicle while impaired. Because this additional act creates a danger to the public, driving under the influence is not `related to the use of drugs within the meaning of section 1210 . . . ." (Id. at pp. 1209-1210.) Just as DUI goes beyond "simple possession or use of drugs" (§ 1210, subd. (d)) and therefore does not qualify as a misdemeanor unrelated to the use of drugs, that offense also goes beyond the conduct included in, and therefore does not qualify as, a "nonviolent drug possession offense" as defined in section 1210, subdivision (a).
Appellant contends otherwise. She argues as follows: "Under section 1210, subdivision (a), one of the listed offenses is `transportation of controlled substances"; in People v. Emmal (1998) 68 Cal.App.4th 1313, 1316-1317 the court stated, "transportation of controlled substances—no matter what quantity is involved—should be prohibited because it poses greater risks to the public than simple possession does"; and therefore, because both transportation of a controlled substance and DUI pose a danger to the public beyond that involved in mere possession of a controlled substance, "the danger to the public attributed to driving under the influence cannot operate as a distinguishing factor in determining whether the offense falls within the scope of Proposition 36." We disagree.
First, we note it is not simply, as appellant asserts, " `transportation of controlled substances" that is included in the definition of nonviolent drug possession offense; rather, the statute refers to "transportation [of certain controlled substances] for personal use." (§ 1210, subd. (a), emphasis added; see People v. Barasa (2002) 103 Cal.App.4th 287, 295-296 [where defendant convicted of transportation of controlled substance seeks to establish Proposition 36 eligibility, he or she has burden of proving contraband transported was for personal use].) We recognize, as Emmal indicates, that transportation of even a small amount of controlled substances poses a greater threat to the public than simple possession. This is true, in part because transportation of controlled substances creates the potential of traffic accidents caused by those who might use and be impaired by a controlled substance during its transportation. (People v. Rogers (1971) 5 Cal.3d 129, 137.) But driving while under the influence of a drug goes beyond both possession and transportation for personal use because such conduct makes a traffic accident, with its potentially catastrophic consequences, even more likely than merely transporting or possessing drugs.
Appellant also relies on People v. Duncan (1990) 216 Cal.App.3d 1621. In that case the court held that DUI was a drug-related offense, which disqualified the defendant from eligibility for diversion under section 1000, subdivision (a)(2). That subdivision "provides that an arrestee is not eligible for diversion if there is evidence he or she has committed a drug related offense `other than a violation of the section listed in this subdivision. " (Id. at pp. 1626-1627.) The court observed that DUI was not listed in subdivision (a)(2) of section 1000 and, in the portion of the opinion on which appellant relies, stated: "it is evident that Vehicle Code section 23152, subdivision (a) as applied to defendant in this case is a drug related offense. Being under the influence of `any drug is one of its essential elements, and there was significant evidence that defendant was under the influence of cocaine while driving." (Id. at p. 1627.)
We recognize, as Duncan indicates, that there is a sense in which DUI is "related" to the use of drugs. But Duncan does not interpret the meaning of "nonviolent drug possession offense" as that term is statutorily defined, and "cases are not authority for propositions not considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) As demonstrated above, because DUI is conduct that goes beyond mere use, possession and transportation for personal use and being under the influence of a controlled substance and because DUI is not among the crimes expressly listed in section 1210, subdivision (a), we conclude DUI does not fall within the statutory definition of nonviolent drug possession offense.
We further conclude that even assuming for the sake of argument that DUI is a nonviolent drug possession offense, the court did not err in revoking appellants Proposition 36 probation because the evidence supported the trial courts finding that appellant posed a danger to the safety of others.
As indicated above, if a person granted probation under Proposition 36 "violates that probation by committing a nonviolent drug possession offense," the court "shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others." (§ 1210.1, subd. (e)(3)(A).) And as is also indicated above, the court revoked appellants probation under Proposition 36 based on appellants admission that she committed the offense of DUI and the courts finding that there is a "danger inherent when someone under the influence of drugs or alcohol gets behind the wheel of a car."
Section 1210.1, subdivision (e)(3)(A) provides, in its entirety, as follows: "(3) Drug-related probation violations [& para;] (A) If a defendant receives probation under subdivision (a), and violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in paragraph (1) of subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan."
We uphold the courts finding. The fact that appellant drove a motor vehicle while under the influence of a controlled substance, within the meaning of Vehicle Code section 23152, supports the courts finding that appellant posed a danger to others. (People v. Schofield (2001) 90 Cal.App.4th 968, 973 [citing 1984 legislative declaration/finding that " `driving while under the influence of alcohol or drugs continues to pose a substantial danger to public health and safety "]; People v. Malvitz (1992) 11 Cal.App.4th Supp. 9, 14 ["a person who is driving while under the influence of alcohol and/or drugs is always a threat and the purpose of section 23152 is to prohibit those `extremely dangerous persons from driving anywhere in California"].)
Appellant contends the courts finding was "contrary to the proper construction" of section 1210.1, subdivision (a)(3). Specifically, she contends, "it would be absurd to simultaneously characterize [DUI]" as both (1) a nonviolent drug possession offense and (2) "inherently posing a `danger to the safety of others, for the purposes of analyzing a probation violation under subdivision (e)(3)(A)." Such a construction, she argues, "[i]n the absence of any facts showing a dangerous manner of driving, . . . would render meaningless the requirement that the prosecution prove the defendant poses a danger to the safety of others." In the instant case, she further contends, there was no evidence she was "speeding, swerving" or in any other way driving in a dangerous manner, and therefore the courts finding that appellant posed a danger to others was in error. We disagree.
As appellant does not dispute, subdivision (e)(3)(A) of section 1210.1 clearly contemplates that some nonviolent drug possession offenses will pose a danger to others, and that if the prosecution proves that fact, revocation of Proposition 36 probation is mandatory. In some cases, depending on the nonviolent drug possession offense in question, it will be necessary for the prosecution to introduce evidence of the circumstances of the commission of the offense to prove the offense was committed in such a way as to pose a danger to others. But it does not render meaningless this proof requirement to construe the statute, as we do, to provide that in cases in which a defendant violates probation by committing a DUI, the prosecution may meet its burden by proving appellant committed that very dangerous offense.
DISPOSITION
The judgment is affirmed.