Opinion
F041624.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. CLAYTON SHAY HALFORD, 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, Janis Shank McLean and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
PROCEDURAL HISTORY AND FACTS
Appellant pleaded no contest to violating California Health and Safety Code section 11377, possession of a controlled substance, and on February 7, 2001, was placed on probation for a term of 36 months. He violated the terms of his probation and, after entering an admission on March 29, 2002, was readmitted to probation on its previous conditions with the additional order that he be placed in a Proposition 36 treatment program. He almost immediately violated again, however, and was arrested on a warrant on July 28, 2002. During the course of his arrest, as he was being booked into the Kern County jail, officers discovered a device for smoking methamphetamine concealed in the waistband of his pants.
Proposition 36, approved at the November 7, 2000, General Election, effective July 1, 2001, is codified in Penal Code sections 1210-1210.1.
On July 30, 2002, appellant appeared with counsel and admitted violations of probation charged against him by way of a declaration letter dated July 2, 2002. He was readmitted to probation on its previous terms on condition he serve an additional 120 days in jail. No mention was made at the hearing on July 30, 2002, of the events which had occurred two days earlier during appellants arrest and booking.
On August 6, 2002, appellant appeared for arraignment on a new alleged violation of probation based on his carrying narcotics paraphernalia into the county jail on July 28, 2002, in violation of section 4573.6. He denied the allegation and the court scheduled a hearing for August 23, 2002. On that date, the court found the alleged probation violation true, and on September 23, 2002, terminated his probation and sentenced him to the lower term of 16 months in the California Department of Corrections.
Appellant contends he was not on probation when he was arrested on July 28, 2002, because his probation had been revoked summarily with the execution of the probation declaration letter on July 2, 2002, and had not been reinstated until July 30, 2002, when he entered his admission. He further contends that his sentence to state prison violates the spirit of Proposition 36. We will reject both contentions.
ANALYSIS
1. Appellant was on probation, and subject to its terms and conditions, between July 2 and 30, 2002.
It is well established that, while summary revocation of probation is a "device by which the defendant may be brought before the court[,] . . . [a]ctual revocation of probation cannot occur until the probationer has been afforded" a hearing. (People v. Barkins (1978) 81 Cal.App.3d 30, 32-33.) Summary revocation does not suspend or toll the defendants obligation to comply with the terms and conditions of his or her probation. (People v. Lewis (1992) 7 Cal.App.4th 1949, 1955.)
Appellant seeks to avoid the impact of this line of authority by arguing that probation under Proposition 36 is different than other felony probation. He reasons that, because a trial courts power to revoke probation under Proposition 36 is more limited than it is where Proposition 36 is not involved, we should rule here that he did not "receive probation" until July 30, 2002, when he entered his admission to the violations charged on July 2, 2002. Section 1210.1, subdivision (e)(2) provides that, if a defendant "receives probation" and violates it by committing an offense that is not a nonviolent drug possession offense, the court "may modify or revoke probation . . . ." Appellant would have this court ignore the period prior to July 30, 2002, find that he was placed on probation on that date and, conveniently, be compelled to find that he was not on probation when the section 4573.6 violation occurred. Appellant cites no authority to support the idea, however, that the law regarding the basic attributes of probation, including the holdings cited above, is or should be different when probation is ordered pursuant to Proposition 36. We decline his invitation to create a distinction where none otherwise exists.
2. Appellants sentence to state prison does not violate the spirit of Proposition 36.
Appellant contends he was not given a chance to succeed on the Proposition 36 probation to which he was reinstated on July 30, 2002, and that, for this reason, his sentence violates the spirit of Proposition 36. While it is true that he had virtually no opportunity to succeed on his probation after July 30, 2002, it is also true that the violation he committed on July 28, 2002, was for an offense which is specifically excluded from the class of offenses to which Proposition 36 is addressed—that is, it was not a nonviolent drug possession offense. (§ 1210, subd. (a).) Section 1210.1, subdivision (e)(2) specifically states that, under these circumstances, the trial court may revoke or modify probation. Here appellant had violated his probation three times, once before and twice after the Proposition 36 treatment condition was ordered. The revocation and sentence to prison were a proper exercise of the trial courts sentencing discretion.
DISPOSITION
For these reasons, appellants conviction and sentence are affirmed.
Unless otherwise noted, all further statutory references will be to the Penal Code.