Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVA015848, Keith D. Davis, Judge.
Randall B. Book out, 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, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
The trial court found defendant in violation of a term of his Proposition 36 probation requiring him to report to his probation officer. On appeal, defendant contends the court erred in revoking his probation because Penal Code section 1210.1, the statutory enactment of Proposition 36, requires that a probationer receive continued probation upon his first drug-related violation of probation. He maintains that the People failed to adduce sufficient evidence below to demonstrate that the requirement that he report to his probation officer was a non-drug-related condition of his probation, such that it was also required to prove that he was a danger to society before probation could be revoked. This, he contends, the People likewise failed to do. We agree. Nonetheless, we find any error harmless because there was a substantial likelihood that defendant would be deported and, thereby, unable to fulfill the mandatory treatment component of his probation. The judgment is, therefore, affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On October 4, 2001, defendant pled guilty to one count of possession of amphetamine. In return, a prior prison term allegation was stricken and defendant received a three-year Proposition 36 probationary term. Among the various terms and conditions of defendant’s probation, term 1 required that he “[v]iolate no law” and term 2 required that he report immediately to his probation officer and every 14 days thereafter. Defendant’s plea constituted a violation of his previously-imposed parole; hence, defendant was immediately released to the custody of the Department of Corrections and Rehabilitation in order to serve an eight-month stint on the parole violation. Defendant was deported upon completion of his incarceration for the parole violation. Defendant never reported to his probation officer.
On June 26, 2003, the People filed a petition for revocation of probation, alleging defendant failed to report immediately to his probation officer, failed to report to his probation officer every 14 days, failed to cooperate with his probation officer, failed to inform his probation officer of a change in his address, and failed to participate in a mandatory drug counseling program. The court summarily revoked probation and issued a warrant for defendant’s arrest. Defendant was apparently picked up on the warrant and arraigned in April 2007. Defendant admitted not reporting to probation, both before being deported and after returning to the United States. He asserted that he felt he had already fulfilled his sentence. At the time of his Vickers hearing, the Immigration and Naturalization Service (INS) had a hold issued on defendant and his deportation was pending. The court found defendant in violation of term 2 of his probation and sentenced him to the midterm of two years contained in his plea agreement.
People v. Vickers (1972) 8 Cal.3d 451.
II. DISCUSSION
A. The Court’s Error in Revoking Defendant’s Probation Based on His Violation of a Drug-Related Condition of His Probation Was Harmless
“Following the enactment of Proposition 36, the ‘Substance Abuse and Crime Prevention Act of 2000,’ which took effect July 1, 2001, a defendant who has been convicted of a ‘nonviolent drug possession offense’ must receive probation and diversion into a drug treatment program, and may not be sentenced to incarceration as an additional term of probation. (Pen. Code, § 1210.1, subd. (a).)” (People v. Canty (2004) 32 Cal.4th 1266, 1272-1273, fn. omitted.) As Canty noted, “Proposition 36 is codified in Penal Code sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et seq. [Citation.]” (Id. at p. 1273, fn. 1.)
Section 1210.1, subdivision (a) provides: “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.”
If a defendant violates a drug-related condition of his probation, probation may only be revoked after a finding that he poses a danger to the safety of others. (§ 1210.1, sub d. (f)(3)(A); People v. Murillo (2002) 102 Cal.App.4th 1414, 1421; People v. Williams (2003) 106 Cal.App.4th 694, 701.) “Proposition 36 seeks to provide treatment only when an offender is amenable to treatment, and uses a defendant’s criminal history as a means of determining amenability. A first-time offender is conclusively presumed to be amenable to treatment. A second-time offender also is presumed to be amenable to treatment, but that presumption may be rebutted. A third-time offender is conclusively presumed to be unamenable to treatment and is ineligible for probation.” (People v. Williams, supra, at p. 702 [a third-time offender is now presumptively, rather than conclusively, ineligible for probation]; § 1210.1, sub d. (f)(3)(C).)
Nonetheless, “Proposition 36 does not . . . extend repeated chances at probation to probationers who violate non-drug-related conditions of probation.” (People v. Johnson (2003) 114 Cal.App.4th 284, 296; § 1210.1, sub d. (f)(2).) “The first time a probationer violates such a condition, the court has discretion to incarcerate the person.” (In re Taylor (2003) 105 Cal.App.4th 1394, 1398.) A probation condition requiring the probationer to report to a probation officer may be regarded as a non-drug-related condition of probation depending upon the circumstances. (Id. at pp. 1398-1399 & fn. 7; People v. Johnson, supra, at pp. 298-300; People v. Atwood (2003) 110 Cal.App.4th 805, 811-813.) In Taylor, the court held “that when the probation violation is the failure to appear for an appointment to be tested, then the appointment is a drug-related condition.” (In re Taylor, supra, at p. 1399, fn. 7.) In Johnson, the court found that a failure to initially report to the probation officer was a non-drug-related violation of probation. (People v. Johnson, supra, at pp. 298-300.) In Atwood, the court found that a violation of a probationary term requiring the probationer to report to the probation officer may be deemed a non-drug-related violation, but the burden is on the People to adduce evidence showing that the obligation to report was non-drug related. (People v. Atwood, supra, at pp. 811-812.) Section 1210.1 defines “drug-related condition of probation” as including “a probationer’s specific drug treatment regimen, employment, vocational training, education programs, psychological counseling, and family counseling.” (§ 1210.1, sub d. (g).)
Here, defendant argues that the People failed to carry its burden of proving that defendant’s initial or subsequent reporting condition was non-drug related. We agree. Indeed, when asked to describe the purpose of the initial reporting, the probation officer testified that probationers “are oriented as to the [Proposition] 36 program. They are given a referral for treatment and other documents and they are told to report by phone usually every two weeks and to report to the office once a month.” Orientation as to the Proposition 36 program could only be a drug-related condition because “[t]he stated purpose and intent of Proposition 36 was ‘[t]o divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] . . . [t]o 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[.]’ [Citation.]” (People v. Murillo, supra, 102 Cal.App.4th at p. 1417.) Referral for treatment also necessarily implies drug treatment. Thus, rather than proving the reporting condition was non-drug related, the People proved the opposite. Furthermore, because the People adduced no evidence that defendant posed a danger to society, the court erred insofar as it revoked defendant’s probation upon a violation of his reporting condition alone.
Nonetheless, we find any error harmless because there was a substantial likelihood that defendant would be deported if granted probation; thus, rendering him unable to participate in the very programs underlying the purpose of Proposition 36. “[W]here the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program, we hold that that [sic] section 1210.1 does not preclude the trial court from exercising its discretion to deny probation.” (People v. Espinoza (2003) 107 Cal.App.4th 1069, 1076.)
Here, defendant had previously been deported. The INS had a current hold on defendant and his deportation was, again, pending. The rational inference of these facts is that defendant was again in the country illegally. Indeed, the probation officer testified that defendant does have an INS hold which makes him ineligible for treatment because he will be deported and unable to participate in the program. Furthermore, the trial court expressly found defendant unamenable to treatment. Therefore, the record supports the unamenability of defendant to Proposition 36 treatment due to his prospective unavailability for such treatment. Thus, the court’s decision to revoke probation was well within its discretion.
B. Defendant’s Contention That the Plea Was Void as Against Public Policy is Not Cognizable on Appeal
Defendant asserts that his plea was void as against public policy because, while placing him on Proposition 36 probation, it reserved the trial court’s broader discretion to revoke probation without resort to the procedures outlined in section 1210.1. Defendant’s claim is not cognizable on appeal for several reasons. First, defendant never filed a motion to withdraw his plea nor raised an objection to the contents of his plea agreement below; thus, he has forfeited the issue on appeal. (§ 1018; In re Sheena K. (2007) 40 Cal.4th 875, 880; People v. Brach (2002) 95 Cal.App.4th 571, 577-578; United States v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508].) Second, defendant’s contention is untimely because he failed to file an appeal within 60 days of his original grant of probation. (Cal. Rules of Court, rule 8.308(a); People v. Glaser (1965) 238 Cal.App.2d 819, 821, disapproved on other grounds in People v. Barnum (2003) 29 Cal.4th 1210; People v. Wright (1969) 275 Cal.App.2d 738, 739.) Third, defendant may not attack the validity of his plea agreement where he has failed to obtain a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Turner (1985) 171 Cal.App.3d 116, 124-128.) Finally, we note that were we to address the merits of defendant’s contention, the plea agreement itself and the court’s grant of probation incorporated by reference the terms and conditions of Proposition 36, and thereby section 1210.1. Thus, no reasonable trial court would have felt free to ignore the dictates of section 1210.1 in determining whether to revoke defendant’s probation. Had the court done so, such would constitute reversible error. Regardless, the court committed no such error and the contention is therefore illusory.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.