Opinion
E052520 Super.Ct.No. FMB900435
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE LEE HUGGINS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William W. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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OPINION
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed in part; reversed in part with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William W. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jesse Lee Huggins appeals following the revocation and termination of his probation. Citing Penal Code section 1210.1 (Proposition 36), defendant contends the trial court erred as a matter of law when it terminated his probation and sentenced him to prison. Defendant also seeks remand for a new sentencing hearing on the issue of conduct credits, because he believes the trial court erred when it declined to grant him any credits.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On September 28, 2009, defendant was charged with possession of heroin. (Health & Saf. Code, § 11350, subd. (a).) The felony complaint further alleged defendant had served seven prior prison terms within the meaning of Penal Code section 667.5. Defendant was on parole at the time of the offense. This new charge was filed as a result of heroin and drug paraphernalia found during a parole search in a home where defendant was living. He was in custody on the parole violation until February 21, 2010.
Pursuant to a written plea agreement, defendant pled guilty on December 15, 2009, to one count of heroin possession (§ 11350, subd. (a)) and admitted seven prior prison terms (§ 667.5). Also as part of the plea agreement, defendant was accepted into a drug court review program. On March 9, 2010, the court granted defendant probation for a period of 36 months subject to various terms and conditions, including participation in substance abuse treatment and the drug court rehabilitation program.
From April 12, 2010, through May 4, 2010, defendant was in custody, because he failed a drug test. On July 27, 2010, the court issued a bench warrant when defendant failed to appear in court as ordered. Defendant next appeared in court in custody almost two months later on September 22, 2010, and denied violating his probation. On October 12, 2010, defendant was terminated from the drug court rehabilitation program. At this time, the court also revoked and terminated defendant's probation and sentenced him to a total of 10 years in state prison. To reach the total term, the court imposed three years for the heroin possession offense and then added seven consecutive one-year terms for the prior prison terms.
DISCUSSION
A. REVOCATION AND TERMINATION OF PROBATION
Citing section 1210.1, defendant argues the trial court did not have authority to terminate his probation on October 12, 2010. According to defendant, his failure to appear in drug court on July 27, 2010, was only a first violation of a drug-related condition of his probation. As a result, he contends his probation could not be revoked under Proposition 36 without a showing by the prosecution and a finding by the court that he posed a danger to the safety of others. Defendant believes the record shows the prosecution did not make the necessary showing, and the court did not make the required findings.
"Trial courts are granted great discretion in deciding whether or not to revoke probation. [Citation.] 'Absent abuse of that discretion, an appellate court will not disturb the trial court's findings.' [Citation.]" (People v. Kelly (2007) 154 Cal.App.4th 961, 965.)
"Proposition 36 established a comprehensive sentencing scheme for certain drug offenders. As discussed in a number of recent cases, the purpose of Proposition 36 is '[t]o divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses.' [Citations.] The scheme offers these offenders the opportunity to participate in structured outpatient drug treatment programs in lieu of incarceration. . . . Significantly, qualifying drug programs may not be located in a prison or jail facility. [Citation.]" (People v. Esparza (2003) 107 Cal.App.4th 691, 695-696.)
Our review of the record confirms the People's contention that several terms of defendant's drug court application and agreement (the "agreement") are at odds with the protective provisions of section 1210.1; as a result, Proposition 36 does not apply. First, paragraph 6 of the agreement states in part, "The District Attorney's Office is agreeing to probation, up to one year in County Jail, plus standard terms and conditions of probation as an initial grant of probation." Term No. 1 of defendant's probation required him to spend 140 days in jail. Subdivision (a) of section 1210.1 provides, "A court may not impose incarceration as an additional condition of probation." Thus, the agreement and defendant's 140-day jail term conflict with section 1210.1, subdivision (a).
Second, subdivision (b) of paragraph 9 of the agreement states as follows: "I understand that failure to comply with the Treatment Program may result in the Judge placing me in custody for a period of time." By contrast, subdivision (f)(3)(A) of section 1210.1 does not permit the court to revoke a defendant's probation and impose incarceration the first time a defendant violates a drug-related condition of probation, unless the state proves the defendant "poses a danger to the safety of others." (§ 1210.1, subd. (f)(3)(A).) For a second violation of a drug-related condition, the court cannot revoke probation and incarcerate the defendant unless the state proves "either that the defendant poses a danger to the safety of others or is unamenable to drug treatment." (§ 1210.1, subd. (f)(3)(B).) For a third violation of a drug-related condition of probation, the defendant is no longer eligible for continued probation and may be incarcerated "unless the court determines that the defendant is not a danger to the community and would benefit from further treatment . . . ." (§ 1210.1, subd. (f)(3)(C).)
Third, subdivision (m) of paragraph 9 of the agreement provides, "I waive the requirement for Probation to file a formal Petition to Revoke probation, and a right to a Probation Violation Hearing (Vickers's [sic] Hearing) on any violations that may occur while I am on Drug Court Probation." Unlike the agreement defendant signed, section 1210.1 requires the state to move to revoke probation and states the court "shall conduct a hearing to determine whether probation shall be revoked." (§ 1210.1, subd. (f)(3)(A)(B)(C).)
In sum, as the People point out, defendant "agreed to a disposition outside the mandates of Proposition 36 . . . ." (People v. Chatmon (2005) 129 Cal.App.4th 771, 774.) Similar to this case, the defendant in Chatmon pled no contest to a nonviolent drug possession offense and "agreed to a disposition outside the mandates of Proposition 36 . . . ." (Id. at p. 774.) Pursuant to his plea agreement, the defendant's sentence was suspended, and he was granted probation for three years with a 90-day jail term. (Id. at p. 772.) The defendant then violated the terms of his probation by absconding, so the court revoked his probation. When the defendant reappeared, the court reinstated probation conditioned on a 180-day jail term. The defendant appealed, arguing the court should have sentenced him to probation and drug treatment pursuant to Proposition 36. (Id. at pp. 772-773.) The argument was rejected on appeal, because the defendant received the benefit of his plea bargain and avoided a potentially harsher sentence. As a result, the appellate court concluded the defendant was really just trifling with the courts by attempting to better his bargain through the appellate process. (Id. at pp. 773-774.)
We agree with the sound reasoning of Chatmon and decline to conclude defendant is entitled to application of the protective provisions of Proposition 36. Because defendant signed an agreement and accepted probation with terms that were clearly outside the mandates of Proposition 36, the trial court was not bound by the provisions of section 1210.1 when it decided to revoke and terminate defendant's probation. In addition, the record supports the trial court's decision to terminate defendant's probation and impose a prison sentence. As the court mentioned during the sentencing hearing on October 12, 2010, defendant's prior performance on probation and parole was unsatisfactory. He had already had one dirty drug test shortly after probation was granted on March 9, 2010. Instead of participating in an outpatient drug treatment program and following the other terms and conditions of his probation, defendant absconded, and only returned to drug court after being arrested. We therefore cannot conclude the trial court abused its discretion in terminating defendant's probation and sentencing him to prison.
Even if we could conclude section 1210.1 should have been applied in defendant's case, we would reach the same result. As the People point out, the record indicates defendant's failure to appear in court on July 27, 2010, and his complete disappearance from drug court for almost two months, was the second time he violated his probation in this case. According to the record, defendant's first violation was for a dirty drug test, and he was jailed for the violation from April 12, 2010, through May 4, 2010. Thus, under subdivision (f)(3)(B) of section 1210.1, the court could terminate defendant's probation based on a finding he "is unamenable to drug treatment." As outlined above, the record includes ample evidence from which the trial court was entitled to conclude defendant was simply not amenable to outpatient drug treatment under Proposition 36.
In reaching our conclusion, we acknowledge the mandatory nature of Proposition 36 under other circumstances. For example, in People v. Esparza, supra, 107 Cal.App.4th 691, the appellate court concluded as follows: "When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors, including refusing drug treatment. (§ 1210.1, subd. (b)(4).) Placement of eligible defendants in Proposition 36 programs is not a discretionary sentencing choice made by the trial judge and is not subject to the waiver doctrine. [Citation.]" (Id. at p. 699.) However, this case is distinguishable from Esparza, because defendant pled guilty and agreed to a disposition outside the mandates of Proposition 36, and has not presented any facts or evidence challenging the validity of his plea or the signed agreement.
B. WAIVER OF CONDUCT CREDITS
The trial court granted defendant credit for actual days spent in custody, but did not award any conduct credits under section 4019, because the court believed defendant waived such credits for all purposes. Subdivision (f) of paragraph 9 of the agreement defendant signed in order to participate in the drug court review program states as follows: "I also waive all P.C. 4019 credits as a condition of participating in the DRUG COURT TREATMENT PROGRAM." The phrase "for sanctions only" is handwritten next to this provision. Defendant placed his initials next to this paragraph; however, he argues the waiver was not unconditional, and the meaning of the term "for sanctions only" is ambiguous. As a result, he seeks a remand with directions for the trial court to hold a hearing on the scope of the waiver.
The People contend defendant waived appellate review of this issue, because he failed to object in the trial court. We disagree. "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) "An unauthorized sentence is a narrow exception to the requirement that the parties raise their claims in the trial court to preserve the issue for appeal." (People v. Breazell (2002) 104 Cal.App.4th 298, 304.)
Based on the same typewritten language in a Drug Court Application and Agreement in another case, we agreed with the People's position that the waiver applied "to all section 4019 credits accrued prior to . . . the date defendant signed the Agreement." (People v. Black (2009) 176 Cal.App.4th 145, 155.) Although the waiver in this case is the same as that in Black, the trial court concluded it was a waiver for all purposes. In addition, it appears the parties in this case intended to alter the meaning of the waiver by adding the handwritten note "for sanctions only." Particularly because it includes the handwritten phase "for sanctions only," we agree with defendant's contention the waiver is ambiguous and does not appear to be a waiver for all purposes. Under these circumstances, it is appropriate for us to remand the matter for the limited purpose of determining the parties' intent as to the scope of the waiver, and for the court to calculate and award any credits that may be due. (See, e.g., Black, at pp. 156-157.)
DISPOSITION
The case is remanded for the limited purpose of determining the scope of defendant's waiver of conduct credits under section 4019 and, if necessary, to calculate presentence conduct credits under section 4019 for time spent in local custody, and to amend the minutes and abstract of judgment accordingly. If the abstract of judgment is amended, the clerk of the court is directed to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: RAMIREZ
P. J.
McKINSTER
J.