Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR908205
STEIN, Acting P. J.
On June 19, 2006, defendant Michael J. Hoisington pleaded guilty to unlawful possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)), and was placed on probation for a period of three years. The court revoked defendant’s probation after he failed to appear for a June 26, 2006 meeting with his probation officer. The court later sentenced defendant to the upper term of three years and imposed various fees, fines and assessments. Defendant appeals, contending the court violated the Substance Abuse Crime Prevention Act of 2000 (Proposition 36) when it sentenced him to prison instead of returning him to probation. Defendant contends the court improperly imposed a $600 restitution fine. He also contends a $600 parole revocation fine must be reduced to $200, a $175 laboratory fee must be reduced to $170, and a $525 drug program fee must be reduced to $510. In a supplemental brief, defendant contends the court violated his federal constitutional rights to a jury trial and to proof beyond a reasonable doubt by sentencing him to the upper term without first having a jury determine the existence of facts permitting an upper term sentence, using a standard of beyond a reasonable doubt.
We find no violation of Proposition 36 and, in light of the recent decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, find the court did not violate defendant’s constitutional rights by imposing the upper term. The Attorney General concedes defendant’s claims of error as to the restitution and parole revocation fines. The Attorney General does not contest defendant’s contentions as to the laboratory and drug program fees, noting the “dizzying array of such assessments and their inclusion in various codes,” and pointing out the difference between the amounts imposed and those claimed by defendant to be proper is de minimus (i.e., $20). We affirm the judgment of conviction, but modify the abstract of judgment to eliminate or reduce the fines and fees in accordance with defendant’s contentions.
FACTUAL/PROCEDURAL BACKGROUND
According to the probation report, defendant took a bottle of hydrocodone pills from the pocket of an acquaintance, Richard Dyer, while Dyer was sleeping. Defendant was found to be in possession of Dyer’s bottle of pills and of a syringe. It was determined he had given some of the pills to another acquaintance, Sadie Sue Smith. The police interviewed defendant and Smith. During the course of that interview, defendant started yelling at Smith to go to Dyer’s house to get Dyer to drop his statement.
Defendant was charged with transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), theft with a prior theft (Pen. Code, §§ 666/484), possession of stolen property (Pen. Code, § 496, subd. (a)) and attempting to dissuade a witness (Pen. Code, § 136.1, subd. (b)(2).) Ultimately, he pleaded guilty to simple possession and the remaining charges were dismissed. Pursuant to Penal Code section 1210.1, the court placed defendant on probation for a period of three years. It also imposed a number of fees, fines and assessments. The court further ordered defendant to meet with his probation officer for an intake interview on June 26, 2006, at 1:30 p.m.
Defendant did not appear at the specified time. On July 5, 2006, he called his probation officer, telling the officer he had failed to appear because he had a 9:30 a.m. appointment to meet with his parole agent in Ukiah on the same date and had not been able to acquire transportation back to Lake County in time for the meeting with the probation officer. He stated he had not called the officer because he did not have the number, but had called a girlfriend, instructing her to call probation on his behalf. When asked why it had taken him nine days to contact the probation department to reschedule his appointment, defendant stated, “4th of July weekend amongst other things. No telephone, couldn’t get in contact with them, didn’t have his phone number.” The probation officer reported that after he told defendant he had received no phone calls about the situation, defendant became argumentative and uncooperative. The probation officer contacted defendant’s parole agent, learning defendant had met with the agent from 2:45 to 3:00 p.m. on the afternoon of June 26—not 9:30 in the morning as defendant had claimed. The probation officer also explained the purpose for the scheduled meeting was to explain to and direct defendant how he could successfully accomplish all the conditions of his probation. On October 27, 2006, the court found defendant had violated his probation, also finding the violation was not drug-related. The court revoked defendant’s probation, sentenced him to the upper term of three years in state prison and again imposed various fees, fines and assessments on him.
DISCUSSION
I.
Drug-Related Violation
“The manifest purpose behind Proposition 36 was to divert into treatment those persons whose only offenses were nonviolent drug possession offenses.” (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1208.) Its intent was to divert nonviolent offenders from incarceration into substance abuse treatment programs. (Ibid.) A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme developed by the proposition. (People v. Dagostino (2004) 117 Cal.App.4th 974, 987 (Dagostino).) In essence, and in the absence of circumstances we need not consider here, such a defendant is entitled to three violations of drug-related probation conditions before probation may be revoked. (Pen. Code, § 1210.1, subds. (e)(3)(D), (e)(3)(E) & (e)(3)(F); Dagostino, supra, at p. 987.) The rationale is that drug abusers often initially falter in their recovery and so should be given several chances at probation before permitting a court to impose jail time. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397 (Taylor).)
Since we find defendant’s probation was revoked because he violated a condition that was not drug-related, we do not consider the Attorney General’s alternative argument that defendant was ineligible for probation because he was unamenable to treatment.
“ ‘Proposition 36 does not, however, extend the same grace to probationers who violate non-drug-related conditions of probation. The first time a probationer violates such a condition, the court has discretion to incarcerate the person. [Citation.]’ [Citation.]” (Dagostino, supra, 117 Cal.App.4th at pp. 987-988.) “ ‘[A] defendant who has violated a non-drug-related condition of probation loses the “grace” granted to probationers otherwise subject to Proposition 36. [Citation.] At that point, the defendant stands in the same shoes as any other probationer and he is subject to whatever sentencing statutes bear on his sentencing.’ [Citation.] The court then has 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. [Citation.]” (Dagostino, supra, at p. 974.)
The term “drug-related condition” is defined by Penal Code section 1210.1, subdivision (g) as including “a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.” It has been held that an order to report to a probation officer is a drug-related condition when the purpose of the appointment is to be tested for drugs. (Taylor, supra, 105 Cal.App.4th at pp. 1398-1399.) Similarly, where a defendant failed a condition of probation requiring him participate in the court’s substance abuse program of drug testing and reporting to drug court, that failure was the violation of a drug-related condition. (People v. Davis (2003) 104 Cal.App.4th 1443, 1447 (Davis).)
However, a condition simply requiring a defendant to meet with his or her probation officer “may be a condition of probation for any number of reasons, none of which is necessarily drug-related.” (Taylor, supra, 105 Cal.App.4th at pp. 1398-1399; and see People v. Johnson (2003) 114 Cal.App.4th 284, 297-300; People v. Dixon (2003) 113 Cal.App.4th 146, 152; People v. Goldberg, supra, 105 Cal.App.4th at p. 1209.)
In People v. Johnson, supra, 114 Cal.App.4th 284, the court found an order to report to a probation officer was not a drug-related condition, notwithstanding that the defendant stood convicted of a Proposition 36 offense. It made the point that the intent and purpose of Proposition 36 is to divert into treatment those persons whose only offenses are nonviolent drug possession offenses. The defendant’s criminal history did not consist only of nonviolent drug offenses. Thus, the court found, denying the defendant reinstatement “is consistent with the intent and purpose of Proposition 36.” (Id. at p. 300.)
Here, the defendant failed to comply with the condition of his probation that he meet with his probation officer for an intake interview and referral for drug treatment. Unlike the situations in cases such as Taylor, supra, 105 Cal.App.4th 1394 and Davis, supra, 104 Cal.App.4th 1443, nothing in the record indicates defendant was to undergo testing or treatment during the appointment. The probation officer’s report recited that defendant had violated probation by failing to appear for his mandatory risk assessment and drug treatment referral on June 26, 2006. The intake interview, particularly the risk assessment, would give the probation officer the information necessary to determine the degree of supervision that the defendant needed to successfully accomplish all of the conditions of his probation. That the probation officer may have planned to provide guidance or direction about how defendant could satisfy all the conditions of probation, including one or more drug-related condition, does not require a finding that the June 26 meeting itself was drug-related.
Also, as in Johnson, supra, 114 Cal.App.4th 284, defendant’s criminal history was not limited to nonviolent drug possession offenses. To the contrary, defendant has an extensive criminal history, comprised of some violent and some nonviolent crimes, many of which do not appear to have been drug-related. In addition, although defendant pleaded guilty to simple possession, there is reason to believe he in fact was guilty of more serious offenses. The record also suggests that the chief concern about defendant was his unwillingness to cooperate with authority and his attempts to “beat the system,” as opposed to any tendency to abuse drugs. It is not even clear defendant himself had consumed any of the hydrocodone he took from Dyer, or that he intended to consume it, as opposed to giving or selling it to others. In other words, the possession of hydrocodone may have been incidental to the crime of theft, not the reverse. On the other hand, defendant’s failure to comply with court-imposed orders is well documented. For example, defendant’s parole officer reported defendant had been released on parole on October 21, 2004. On April 15, 2005, he was returned to custody for a four-month period for “absconding parole supervision.” On July 29, 2005, he was arrested for failing to comply with a police officer’s instructions. He was released on August 4, 2005, but was returned to custody on October 6, 2005, for absconding. He was placed in custody again on January 26, 2006, for absconding and using methamphetamines, and again on August 5, 2006, for failing to follow instructions and absconding. He was accepted into a residential program and told to report on October 21, 2005, but did not show. According to defendant, it was important that he make the June 26, 2006 appointment with his parole officer because he had failed “two prior tries” to get there.
As summarized by the trial court at the sentencing hearing:
In sum, in light of defendant’s history and of the crime itself, that defendant’s appointment with the probation officer might have led to a referral for a drug treatment program was not determinative. Under the circumstances, the trial court was entitled to find that defendant’s violation was his failure or refusal to comply with a general order to appear, not for his failure or refusal to comply with a drug-related condition.
II.
Restitution Fine, Parole Revocation Fine, Laboratory Analysis Fee, and Drug Program Fee
Defendant contends the trial court acted in excess of its jurisdiction by imposing a $600 restitution fine as part of his sentence when it had imposed a $200 restitution fine at the time it suspended imposition of judgment and placed defendant on probation. The Attorney General agrees the $600 fine must be struck because the sentence resulted in two restitution fines for the same conviction. The court also imposed a $600 parole revocation fine pursuant to Penal Code section 1202.45, which requires the court to impose such a fine “in the same amount” as the restitution fine. As the restitution fine should be $200, the parole revocation fine must be reduced to $200.
Defendant also contends a $175 laboratory fee should be reduced to $170, and a $525 drug program fee should be reduced to $510. The Attorney General does not contest the contention or the calculations behind it. We therefore accept defendant’s contention as having merit.
IV.
Cunningham Error
Defendant contends the court erred by sentencing him to the upper term. The contention is based on the decision by the United States Supreme Court in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], holding California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. However, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely v. Washington (2004) 542 U.S. 296, 303.) In addition, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301.)
In sentencing defendant to the upper term, the trial court here listed a number of aggravating factors. It found defendant’s prior convictions are numerous and increasing in seriousness. His prior performance on probation and parole has been poor, the effect on him of further imprisonment and the collateral consequences from a felony conviction will be minimal. The victim was particularly vulnerable. Defendant unlawfully tried to prevent or dissuade witnesses from testifying, suborned perjury and committed perjury. He has engaged in violent conduct in the past, he has served a prior prison term and he was on parole at the time the crime was committed. The court balanced these factors against the single mitigating factor that defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process (although the court also found that factor to be entitled to little if any weight because of the significant benefits to defendant from pleading guilty), found the upper term to be appropriate, and imposed the upper term.
Defendant did not admit to any of the aggravating factors. He concedes the court was entitled to consider his prior convictions, but contends the judgment should be reversed because the court also considered other, impermissible factors, and because some, although not all, of the prior convictions resulted from juvenile adjudications where defendant had no right to a jury trial. The Supreme Court recently has put contentions such as this to rest, holding in Black II, supra, 41 Cal.4th 799, “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Here, defendant’s eligibility for the upper term was established by his prior convictions. The trial court therefore was entitled to balance all the aggravating factors against the mitigating factors in selecting the appropriate sentence. There was no error.
DISPOSITION
The judgment is affirmed. The abstract of judgment is modified to strike the $600 restitution fine, to reduce the parole revocation fine to $200, to reduce the laboratory fee to $170 and to reduce the drug program fee to $510.
We concur: SWAGER, J., MARGULIES, J.
“. . . I have to say, I’ve been in this business for close to 30 years now and I have never seen ever anyone your age that has this long of a RAP sheet at 23 years old. It’s unbelievable.
“Starts out when you’re very, very young . . . it appears to involve some minor offenses such as tobacco and things like that, but it also involves vandalism, theft, more theft, destruction of [others’] property, an arson in Oregon, more vandalism, menacing . . . trespassing and theft.
“You were sent to the youth authority in Oregon. Your parole was revoked more than once because of misbehavior after you had been paroled from the youth authority in Oregon.
“Then you come back to Lake County and you’re in possession of stolen property, you were charged with a burglary, had another possession of stolen property, you had an assault on another person, violation of probation, disturbing the peace, resisting arrest on an officer, auto theft, again burglary.”