Opinion
B161015.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. MARY LUCIA MAZURETTE, Defendant and Appellant.
Katharine E. Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Marc J. Nolan, Deputy Attorneys General, for Plaintiff and Respondent.
Mary Lucia Mazurette appeals from the judgment entered following revocation of probation previously granted in two cases. She was sentenced to concurrent terms of two years in prison and contends that the imposition of a prison term was contrary to Proposition 36 and constitutes an illegal sentence. We affirm.
PROCEDURAL BACKGROUND
In March 1998, in case No. KA038476 ("the 1998 case"), appellant entered a plea of no contest to possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)), driving with a suspended license, a misdemeanor (Veh. Code, § 14601.1, subd. (a)), and driving an unregistered vehicle, an infraction (Veh. Code, § 4000, subd. (a)). She was granted deferred entry of judgment (Pen. Code, § 1000 et seq.).
In September 2000, an information charging appellant with felony possession of methamphetamine was filed in case No. KA049478 ("the 2000 case"). Following a jury trial, appellant was convicted as charged. The deferred entry of judgment in the 1998 case was terminated.
In March 2001, the trial court placed appellant on probation for three years in both cases on specified terms and conditions, including the requirements that she report to the probation department within 24 hours of her release from custody, cooperate with the probation officer in a plan for drug treatment and drug abuse counseling, and submit to periodic anti-narcotic tests as directed by the probation department.
In August 2001, probation was revoked and a bench warrant issued. In June 2002, the matter was called for a probation violation hearing. The trial court stated, "Ms. Mazurette, it is alleged that you are in violation of probation for failing to report to probation as required and failing to undergo anti-narcotic tests as directed." Appellant admitted the alleged violations. The trial court thereupon found appellant in violation of probation as to both cases and imposed concurrent midterms of two years.
According to the probation officer, appellant had also failed to complete the required drug program. This was not an allegation that appellant admitted at the hearing.
DISCUSSION
Appellant contends that, under the provisions of Proposition 36, the trial court erroneously revoked her probation and sentenced her to prison. This contention is unavailing.
At sentencing, neither the trial court nor the parties mentioned Proposition 36. This does not, however, effect a waiver of the issue raised. (See People v. Esparza (2003) 107 Cal.App.4th 691, 699 (Esparza).)
Proposition 36, the "Substance Abuse and Crime Prevention Act of 2000," was passed by the voters in November 2000 and became effective July 1, 2001, codified in part as Penal Code section 1210.1. Proposition 36 requires that the defendant be placed on probation with the condition that he or she complete a drug treatment program, and no period of incarceration may be imposed. (§ 1210.1, subd. (a).) In accordance with the language of section 1210.1, subdivision (e)(3)(D)-(F), Proposition 36 applies when probation was granted for a nonviolent drug possession offense prior to July 1, 2001 and the probationer has violated a drug-related condition of probation. (See People v. Floyd (2003) 31 Cal.4th 179, 186.)
Unless otherwise specified, all further statutory references are to the Penal Code.
Subdivision (e) of section 1210.1 governs violations of probation under Proposition 36. Subdivision (e)(3) provides for revocation of probation for drug-related probation violations, and subdivision (e)(3)(D)-(F) governs the case of a defendant who
was on probation on the effective date of Proposition 36 and violated probation for drug-related reasons. In the case of the first such violation, revocation is permitted only "if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others." (§ 1210.1, subd. (e)(3)(D).) Appellant asserts that in the absence of any such proof or finding, the revocation of her probation and the prison term were illegal. She further claims that even if hers is deemed a second violation, since her conviction in the 2000 case constituted her first violation of probation in the 1998 case, revocation for a second-time probation violator is permitted only "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 that the defendant is unamenable to drug treatment." (§ 1210.1, subd. (e)(3)(E).) Again, she claims that there was no such proof or finding.
Where Proposition 36 applies, the trial court does not have the ordinary discretion to revoke probation (§§ 1203.2, 1203.3), but must abide by the limitations set forth in section 1210.1. (People v. Davis (2003) 104 Cal.App.4th 1443, 1448, mod. 105 Cal.App.4th 1381b; People v. Murillo (2002) 102 Cal.App.4th 1414, 1421.) However, at the same time the trial court revoked probation in the 2000 case, it also revoked probation in the 1998 case. As to the 1998 case, appellant was not eligible for treatment under Proposition 36, since its provisions are not applicable to a defendant "who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs . . . ." (§ 1210.1, subd. (b)(2); see People v. Goldberg (2003) 105 Cal.App.4th 1202, 1206-1208.) In the 1998 proceeding, in addition to the conviction of possession of methamphetamine, appellant was convicted of driving with a suspended license, a misdemeanor not related to the use of drugs.
Section 1210 defines "`misdemeanor not related to the use of drugs" as "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender . . . ." (§ 1210, subd. (d).)
As to the 1998 case, after appellant admitted the alleged violations, the trial court exercised its discretion to revoke probation. Having revoked probation, the trial court determined that appellant had utterly failed under probationary supervision and was not "able or willing to cut it," and it imposed a prison term in the 1998 case. The trial court was not governed by the limitations of Proposition 36 in the 1998 case, but was acting under its general power to revoke probation, and these rulings were within the sound exercise of its discretion. (See Esparza, supra, 107 Cal.App.4th at pp. 697-698.)
A Proposition 36 drug treatment program cannot be set in a prison. (Esparza, supra, 107 Cal.App.4th at pp. 696, 698-699.) Since appellant was sentenced to prison in the 1998 case, she was therefore unable to participate in a drug treatment program under Proposition 36. In Esparza, the court stated, "In order to accomplish its purposes, the statutory scheme includes extensive requirements for participation in outpatient drug treatment programs and rehabilitative probation conditions. Defendant had, through his prison sentence for the vandalism case, become unable to participate in those programs or to comply with mandatory probation conditions. To claim that he should nevertheless have received a grant of probation on the drug offense while in prison on the vandalism case defies common sense and the letter of the law." (Id. at p. 698, fn. omitted.) Here, where the issue was whether probation already granted should have been revoked in the Proposition 36 case, revocation was required.
We conclude that the trial court properly revoked probation and imposed the concurrent prison terms.
In view of the above conclusion, we need not reach respondents argument that revocation was proper because appellant was also found to have violated a non-drug-related condition of probation, failure to report to her probation officer. (§ 1210.1, subd. (e)(2).)
DISPOSITION
The judgment is affirmed.
We concur: BOREN P.J. and ASHMANN-GERST, J.