Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF105365A, Lee P. Felice, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, A.P.J., Hill, J., and Poochigian, J.
OPINION
THE COURT
On April 27, 2004, appellant Jason E. Jeffers, pursuant to a plea agreement, pled guilty to possession of heroin (Health & Saf. Code, § 11350). In a separate proceeding, the court found true enhancement allegations that appellant had served three separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). On May 27, 2004, the court suspended imposition of sentence and placed appellant on Proposition 36 probation for a period of three years.
Except as otherwise indicated, all further statutory references are to the Penal Code.
Proposition 36 is the Substance Abuse and Crime Prevention Act of 2000 (Act), and is largely codified at sections 1210, 1210.1 and 3063.1 and division 10.8 (commencing with § 11999.4 of the Health and Safety Code). It was adopted at the November 7, 2000, General Election, and took effect on July 1, 2001. (People v. Hazle (2007) 157 Cal.App.4th 567, 572.) Proposition 36 essentially “amended state law to create an alternative sentencing scheme for persons convicted of [nonviolent] drug offenses; it requires that qualifying offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, rather than a prison term or probation without drug treatment....” (People v. Edwards (146 Cal.App.4th 518, 520-521.)
On September 7, 2005, appellant admitted an allegation that he violated probation. On that same date, the court revoked probation and declared appellant ineligible for Proposition 36 probation.
On October 24, 2005, the court struck one of appellant’s prior prison term enhancements; imposed, and stayed execution of, a prison term of four years, consisting of two years on appellant’s heroin possession conviction and one year on each of the two remaining prior prison term enhancements; and reinstated probation, with various modifications, including that appellant serve 180 days in county jail.
On February 1, 2006, appellant admitted another violation of probation, and the court lifted the stay on the previously imposed four-year sentence, suspended criminal proceedings and ordered that proceedings for the commitment of appellant to the California Rehabilitation Center (CRC) be instituted (Welf. & Inst. Code, § 3051).
On December 5, 2008, the court ordered appellant excluded from CRC; reinstituted criminal proceedings; reinstated the previously imposed four-year prison term; and ordered that term to be served concurrently with the four-year prison term imposed that same day in Kern County Superior Court case No. BF125096A (case No. BF125096A.
Case No. BF125096A is currently on appeal in this court, in case No. F056970. We take judicial notice of the following in that case: this court’s opinion, filed contemporaneously with the instant opinion, and the appellate record. (Evid. Code, §§ 452, subd. (d), 459.)
On January 27, 2009, appellant filed a timely notice of appeal.
Appellant argues that because he stands convicted in the instant case of a single nonviolent drug offense, the court erred in failing to either place him on, or “at a minimum … consider[]” him for, Proposition 36 probation. We will affirm.
DISCUSSION
As indicated above, the court placed appellant on Proposition 36 probation in 2004 and revoked that probation in 2005. The 2005 revocation order was appealable. (§ 1237, subd. (b); People v. Vickers (1972) 8 Cal.3d 451, 453 fn. 2.) Appellant, however, insofar as the record reveals, did not appeal. As a result, appellant is precluded in the instant appeal from challenging the court’s failure to place him on, or consider him for, Proposition 36 probation. The situation presented here is similar to that in People v. Djekich (1991) 229 Cal.App.3d 1213.
In that case, the trial court, following defendant Djekich’s plea to multiple zoning ordinance violations, placed Djekich on probation and imposed multiple fines totaling $10,000. Djekich did not appeal the order within the statutory time. Instead, after the time to appeal had expired, he moved to have the order modified to reduce the fines. The court denied the motion on October 25, 1987, but granted Djekich’s request to have the judgment entered as of that date. Djekich filed a notice of appeal on November 23.
The appellate court first held “the trial court exceeded its jurisdiction by granting Djekich’s motion to deem the judgment entered as of October 25 in an attempt to resuscitate the time within which to file a notice of appeal.” (People v. Djekich, supra, 229 Cal.App.3d at p. 1218.) And, in the portion of the opinion most relevant here, the court rejected appellant’s argument that the October 25 order should be construed as an appealable “‘order made after judgment affecting his or her substantial rights.’” (Id. at p. 1219.) The court stated: “Here, Djekich’s motion to modify was denied. Because the order granting probation was appealable, Djekich’s failure timely to do so precludes this belated attempt to appeal from an order denying modification. To hold otherwise would condone extending the jurisdictional time limit for filing appeals through bootstrapping.” (Ibid.) Similarly, in the instant case, appellant’s failure to appeal the revocation of his Proposition 36 probation bars his attempt at this late date to, in effect, challenge that revocation.
Moreover, because appellant was sentenced to prison in case No. BF125096A, he is not eligible for Proposition 36 probation. On this point, we find instructive (People v. Esparza (2003) 107 Cal.App.4th 691 (Esparza) and People v. Wandick (2004) 115 Cal.App.4th 131 (Wandick).
“[T]he 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.’” (Esparza, supra, 107 Cal.App.4th at p. 695.) Thus, as indicated in footnote 2, ante, under Proposition 36 a grant of probation with a drug treatment condition is mandatory for anyone convicted of a “nonviolent drug possession offense” (NDPO) unless disqualified by the provisions of section 1210.1, subdivision (b). (§ 1210.1, subd. (a).) The statutory “exceptions to eligibility for otherwise eligible defendants” (§ 1210.1, subd. (b)) “can be summarized as: 1) conviction of prior strike offenses within five years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability to drug treatment. (§ 1210.1, subd. (b).)” (Esparza, at p. 696.)
In Esparza, the court considered whether a defendant who was convicted of an NDPO while on probation for felony vandalism, and was not subject to any of the statutory exceptions to eligibility for probation under the Act, was still eligible for a Proposition 36 drug treatment program after he was sent to prison for three years for violating probation in the vandalism case. Noting that Proposition 36 includes “extensive requirements for participation in outpatient drug treatment programs and rehabilitative probation conditions,” the court concluded that because the defendant’s existing incarceration precluded him from participating in the treatment programs and complying with other probation conditions required by Proposition 36 (see § 1210, subds. (b), (c)), it “defie[d] common sense and the letter of the law” to place him on probation under Proposition 36 for the drug offense. (Esparza, supra, 107 Cal.App.4th at p. 698, fn omitted.)
The court relied on the rule of statutory construction that a statute should not be interpreted in a manner that leads to absurd results and held that the trial court was not required to engage in the superfluous act of placing the incarcerated defendant on Proposition 36 probation. (Esparza, supra, 107 Cal.App.4th at p. 698.) The court found that an incarcerated defendant who is unavailable to participate in Proposition 36 programs within the statutory time periods because of his prison sentence is essentially unamenable to drug treatment under the statutory scheme. (Id. at p. 699.)
In Wandick, the defendant, while awaiting trial on an NDPO, committed grand theft. By the time he appeared for sentencing on the drug offense he had been convicted of grand theft and sentenced to two years in prison. Like the defendant in Esparza, the defendant in Wandick stood convicted of an NDPO and “literally did not fit within any of the exceptions set forth in section 1210.1, subdivision (b)).” (Wandick, at p. 134). Nonetheless, the court of appeal upheld the trial court’s refusal to grant the defendant probation under Proposition 36 on the drug offense, “apply[ing] Esparza’s reasoning” and holding the defendant “was... not amenable to drug treatment within the meaning of the statute because he was unavailable to participate in the specified drug treatment programs.” (Id. at p. 135.)
DISPOSITION
The judgment is affirmed.