Opinion
C057483
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. RICKY EDWARD KING, Defendant and Appellant.
Not to be Published
Defendant Ricky Edward King appeals from the two-year mid-term sentence imposed for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) following his admission that he violated probation. Specifically, he contends the trial court erred in finding he was not amenable to treatment and entitled to further probation under Proposition 36 and abused its discretion in sentencing him to state prison rather than further probation. We shall affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, defendant was stopped by an Oroville police officer for not wearing his safety belt. A consent search of defendant revealed a glass smoking device, 1.1 grams of methamphetamine, and .3 grams of cocaine. After being Mirandized, defendant admitted smoking methamphetamine a few hours earlier.
All of the events and hearings described herein occurred between July and September 2007.
Miranda v. Arizona (1966) 384 U.S. 436 .
A few days later defendant was charged with possession of cocaine and possession of methamphetamine. That same day, he pled no contest to possession of cocaine and the other charge was dismissed. In mid-July, imposition of sentence was suspended and defendant was granted probation under Proposition 36. His terms and conditions of probation included: refrain from the use of controlled substances unless prescribed by a physician; participate in a medical/drug therapy treatment program; submit to drug testing; report to Butte County Behavioral Health on July 12, 2007, and Probation on July 17, 2007; attend weekly Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) meetings and maintain logs of those meetings; and, discuss alternate pain management regimes to deal with issues related to his back pain.
One week after he was sentenced, a probation violation petition was filed alleging defendant had failed to report to the probation department as ordered. On July 25 defendant admitted this probation violation. The court continued him on probation and ordered defendant to report to the probation department on July 30. Defendant was also ordered to attend one NA/AA meeting per day for the next 90 days. It was also noted for the record that defendant had tested positive for cocaine, marijuana, and methamphetamine on July 20.
At a hearing on August 1, reporting on defendants progress, the probation officer stated, "Id like to say [defendant] relapsed, but I dont think its a relapse. I think hes continued using, used over the weekend." Defendant advised the court of a number of personal problems that were occurring in his life and admitted he had used drugs over the weekend. Although defendant had brought his NA/AA logs to the hearing, they were incomplete. His next court date was set for August 8, 2007.
On August 8 the probation department filed a second probation violation petition. This petition alleged defendant failed to submit a urine sample for drug testing on August 1, failed to report to the probation department on August 3, and tested positive for methamphetamine and marijuana on August 3.
Defendant failed to appear in court for his hearing on August 8. An amended probation violation petition was filed on August 13. In addition to the allegations of the August 8 petition, this petition further alleged defendant had tested positive for methamphetamine on August 6, and on August 8. The petition hearing was set for August 15. Defendant failed to appear on August 15 and a bench warrant was issued for his arrest.
On September 20, 2007, defendant was arrested at a casino. He appeared in court at a probation violation hearing and admitted he had tested positive for methamphetamine on August 6 and August 8. The remaining allegations were dismissed with a Harvey waiver. The People argued defendants compliance with probation had been "spotty before" and that defendant had "disappeared off our radar 8-8-07 . . . [h]es been gone over 30 days at a minimum, and I think pursuant to Guzman and Esparza hes waived his further participation." Defendant argued for reinstatement. The court found under Guzman and the statute defendant was unamenable to treatment. Accordingly, the court terminated Proposition 36 probation and referred the matter to the probation department for a sentencing report.
People v. Harvey (1979) 25 Cal.3d 754.
People v. Guzman (2003) 109 Cal.App.4th 341 (Guzman).
People v. Esparza (2003) 107 Cal.App.4th 691.
The probation report noted defendant wanted to be continued on probation and referred to drug court. The report also noted defendant had performed poorly on probation. Probation also noted defendant was an active participant in the crime and there was no indication that if he was continued on probation he would behave any differently than he had already behaved. Probation did not view defendant as an appropriate candidate for probation, and recommended he be sentenced to the middle term of two years. The probation office noted their original recommendation was to impose the two-year sentence, suspend it, and commit defendant to the California Rehabilitation Center (CRC). However, defendant stated if he were to be sentenced to a prison term, he would rather "just do his time."
At the sentencing hearing, the People agreed with probations recommendation. Defense counsel argued sentencing could be continued to allow defendant to attend a residential treatment program or that probation be granted and defendant could attend the residential treatment program. Counsel also noted defendant had a minimal prior record. Defendant also made a statement to the court, noting the personal difficulties he had been facing, his medical issues, and his willingness to comply with treatment.
After considering the arguments of the parties and the probation report, the court terminated Proposition 36 probation, denied further probation and sentenced defendant to the middle term. The court cited its reasons for the defendants sentence as: his numerous prior violations of probation; the fact he was out of contact with the probation department and treatment team for approximately two months; and he was an active participant in the crime.
DISCUSSION
I.
The Trial Court Did Not Err in Finding Defendant Unamenable to Treatment and Therefore Ineligible for Proposition 36 Probation
A. The Pre-2006 Amendment to Section 1210.1 Applies
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Act), was adopted at the November 7, 2000 General Election, and is largely codified at Penal Code sections 1210 and 1210.1. In arguing the trial court should not have found him unamenable to treatment and should have continued him on Proposition 36 probation, defendant relies heavily on language contained in the 2006 amendment to section 1210.1, and the legislative intent behind that amendment to support his claim. Defendant notes we have refused to apply the 2006 amendment.
Hereafter, undesignated statutory references are to the Penal Code.
Section 1210.1 was amended effective July 12, 2006 (Stats. 2006, ch. 63, § 7 (SB 1137)); however, a preliminary injunction was issued on September 14, 2006, enjoining the People "from taking any action to implement, enforce or give effect to Senate Bill 1137 . . . until such time as a trial on the merits may be had or until further notice of this court." (Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06-278911) .) On May 7, 2008, the court granted the plaintiffs motion for summary judgment and granted their writ of mandate. As of the time defendant wrote his brief, that court had not yet issued a writ of mandate or permanent injunction. Since defendants briefing was filed, however, the court has acted.
On July 14, 2008, the court issued its judgment granting writ of mandate and injunctive and declaratory relief. The writ directed the People to "refrain from taking any action to implement, enforce or give effect to [any of the provisions of] Senate Bill 1137." The permanent injunction restrained the People from "taking any action to implement, enforce, or give effect to Senate Bill 1137." SB 1137 was declared invalid in its entirety and without force or effect. Accordingly, as we did in People v. Hazle (2007) 157 Cal.App.4th 567, 577, footnote 1, and People v. Hartley (2007) 156 Cal.App.4th 859, 861, we will apply the former version of section 1210.1, that is the version that was in effect before the Legislature enacted the 2006 amendment.
B. The Trial Court Did Not Err in Terminating Proposition 36 Probation
"Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. The first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. [Citation.] The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. [Citation.] Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36s directive for treatment instead of incarceration. [Citation.] Upon such a violation, the court regains its discretion to impose jail or prison time. [Citation.]" (In re Taylor (2003) 105 Cal.App.4th 1394, 1397-1398, fns. omitted (Taylor); see People v. Bowen (2004) 125 Cal.App.4th 101, 105.)
As to a second violation of a drug-related condition of probation, the version of 1210.1 in effect prior to the 2006 amendment provided in pertinent part: "The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant (i) has committed a serious violation of rules at the drug treatment program, (ii) has repeatedly committed violations of program rules that inhibit the defendants ability to function in the program, or (iii) has continually refused to participate in the program or asked to be removed from the program. If the court does not revoke probation, it may intensify or alter the drug treatment plan." (§ 1210.1, subd. (e)(3)(B).)
Here, the court relied on express language of the statute and Guzman to revoke defendants probation. In Guzman the defendant accepted Proposition 36 probation, but then left the country, failed to appear in court, and failed to report to his designated drug treatment center. When the defendant appeared involuntarily in court on a bench warrant, his counsel argued: (1) that his actions could not be deemed a refusal of treatment because he had accepted drug treatment at his sentencing hearing; and (2) that his probation could not be terminated, since his conduct constituted only a "`first violation[]" of probation. (Guzman, supra, 109 Cal.App.4th at pp. 344-345.) The trial court revoked probation on the ground that the defendant had rendered himself unamenable for drug treatment. (Id. at p. 345.)
The Court of Appeal affirmed, stating "the eligibility requirements continue to apply even after the initial grant of probation. To be sure, the trial court would be justified in terminating the probation of a defendant who commences drug treatment and who later advises the court he or she no longer wishes to continue in treatment and would rather serve time. It follows necessarily, then, that the trial court can terminate the probation of a defendant who, by his conduct following the grant of probation refuses to undergo drug treatment. Such a defendant is to be distinguished from a defendant who commences drug treatment and thereafter falters by violating conditions of probation. The transgressions of such a defendant would be analyzed as probation violations pursuant to section 1210.1, subdivision (e)." (Guzman, supra, 109 Cal.App.4th at p. 350 , italics added.)
Defendant attempts to distinguish his case from Guzman. We find these attempted distinctions unavailing. Defendant rests his distinction on the language in Guzman suggesting differentiation between a person who by conduct refuses to undergo treatment and one who commences treatment but falters. Defendants argument suggests that Guzman applies only when defendant has taken no action whatsoever to comply with court orders and the requirements of Proposition 36 probation. By contrast, he continues, he reported to his probation officer on July 30, 2007, apparently reported to the Butte County Behavioral Health on July 26, 2007, and attended some AA/NA meetings.
While it is true defendant took some minimal steps to begin treatment, he never progressed beyond the initial appointments. Defendant never began a drug treatment program. To the extent he attended AA/NA meetings, his attendance was sporadic. The record suggests defendant never discussed alternate pain management with his physician as directed, despite being warned that such a failure could impact on his success in treatment and continuation on probation. Defendant was placed on probation on July 11, 2007. Thereafter, he tested positive for drugs on July 20, admitted using drugs over a weekend of July 28-29, and tested positive for drugs on August 3, 6 and 8. This last, by the way, being a date he was supposed to appear in court and failed to do so. Until defendant was arrested in late September, no one knew his whereabouts. Defendant absconded and effectively refused treatment during that month and a half. He reappeared before the court only because he was arrested. There is no indication he would have otherwise voluntarily returned to the court. This conduct can hardly be characterized as that of "a defendant [who] commences drug treatment and falters." (Guzman, supra, 109 Cal.App.4th at p. 350.) By "disregarding the trial courts orders and the requirements accompanying his grant of probation pursuant to Proposition 36, . . . defendant . . . evinced a complete and unequivocal refusal to undergo drug treatment." (Ibid.)
Although defendant accepted drug treatment at his initial sentencing hearing, "the eligibility requirements [for Proposition 36] continue to apply even after the initial grant of probation." (Guzman, supra, 109 Cal.App.4th at p. 350.) Because defendants "subsequent actions revealed the disingenuousness of his request for drug treatment" (id. at p. 349), the trial court did not violate Proposition 36s statutory mandate in revoking probation. (Guzman, supra, at pp. 349, 350.)
Underlying Proposition 36 is the notion that a person struggling to overcome the burden of addiction will receive substantial support from the court, trained professionals, peers, and from the community at large. A significant body of literature as well as experience and common sense teach that those struggling with substance abuse may repeatedly fail before they succeed. Indeed, the statutory framework contains a safety net designed to support those engaged in the process, even as they stumble. The law does not require perfection, but it does require effort and good faith participation. In order for such programs to be effective, courts must retain the discretion to address each participants individual circumstances. They must also be empowered, as the statute provides, the authority to exclude those who, by their own conduct, demonstrate their complete refusal of treatment. The court properly exercised that discretion here.
II.
The Trial Court Did Not Abuse its Discretion in Sentencing Defendant to State Prison
Defendant next contends the trial court erred in sentencing him to state prison, "without giving him an opportunity to participate in and complete a residential treatment program." (Capitalization omitted.) We disagree.
Once the trial court determined that defendant was no longer eligible for treatment under Proposition 36, it regained its discretion to impose jail or prison time. The court was then free to consider the usual factors that are included in the decision to revoke probation. (See People v. Dixon (2003) 113 Cal.App.4th 146, 153.) "[T]he court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses." (§ 1203.2, subd. (a).)
A trial court possesses extensive discretion in making the decision to revoke probation. (People v. Angus (1980) 114 Cal.App.3d 973, 988.) "`A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] A court abuses its discretion `whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] We will not interfere with the trial courts exercise of discretion `when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Defendant argues there were only two negative factors under California Rules of Court, rule 4.414; his prior performance on probation, and his active participation in the crime. He then contends the remaining criteria favor granting him probation. Specifically, the crime was of minimal seriousness, he was not armed, there was no indication he was a danger to others, the crime was not sophisticated, he did not take advantage of a position of trust, he indicated he was willing to comply with probation and a residential treatment program and expressed remorse. In addition, defendant suffered physical ailments, and the possibility of his regaining employment as a speech therapist would be diminished by a felony conviction.
There is no indication in this record that the court did not fully consider all of these factors. The record reveals that the court was thoroughly acquainted with defendant, including his educational background and physical ailments, and with the nature of his offense. As for defendants future employment prospects, the record indicates defendant was retired. Given defendants past performance on probation and unwillingness to comply with treatment, as well as his statement to probation that he would rather just serve his time than be committed to the CRC, it was not unreasonable for the court to give minimal credence to defendants stated willingness to comply with probation and residential treatment. Accordingly, the court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur:
MORRISON, Acting P. J.
ROBIE, J.