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People v. McCoy

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
B160754 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B160754.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. DANIEL MCCOY, Defendant and Appellant.

Richard M. Doctoroff, 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, Senior Assistant Attorney General, Marc J. Nolan and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant and appellant Daniel McCoy appeals from a judgment of conviction for possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). He entered a plea of no contest pursuant to Penal Code section 1210 et seq. (Proposition 36). The trial court sentenced him to the upper term of three years, but suspended execution of sentence and placed him on formal probation. Subsequently, the trial court found defendant in violation of probation for failure to participate in his drug treatment program and failure to appear in court for a progress report hearing, revoked probation, and ordered execution of the previously imposed state prison sentence. Defendant appealed. He contends: (1) the trial court erred when it imposed a prison sentence at his original sentencing hearing; (2) the trial court erred when it revoked his probation for violations of drug-related conditions of probation and sent him to state prison; and (3) the trial court abused its discretion when it sent him to state prison. We reverse the order revoking defendants probation and ordering him to state prison.

Unauthorized Sentence

Defendant entered a plea of no contest and agreed to the imposition of the upper term, with execution of sentence suspended. Prior to his sentencing, Penal Code section 1210.1 was amended to provide that probation in drug cases should be imposed by suspending the imposition of sentence. At the time of his sentencing, this change was referred to, but nevertheless the parties continued with their negotiated disposition, and the trial court imposed, but suspended, the upper term. Defendant did not object. Defendant did not appeal.

Defendant contends his original sentence was unauthorized and may be challenged at this time. We disagree. "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester (2000) 22 Cal.4th 290, 295.)

Here, defendant entered into a plea agreement for a specified sentence, i.e., the imposition and suspension of a three-year state prison sentence. Thus, even if this sentence were unauthorized, defendants acceptance of the plea bargain constitutes an implicit waiver of his right to object to the agreed upon sentence.

Probation for Drug-Related Conditions

In a Proposition 36 case, if a defendant violates a drug-related condition of probation for the first time, the trial court may not revoke probation and send the defendant to state prison, unless the prosecution establishes that the defendant poses a danger to the safety of others. (Pen. Code, § 1210.1, subd. (e)(3)(D); People v. Davis (2003) 104 Cal.App.4th 1443, 1447-1448.) A drug-related condition of probation includes "a probationers specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling." (Pen. Code, § 1210.1, subd. (f).) Reporting to court is part of a probationers drug treatment regimen and is therefore a drug-related condition of probation. (People v. Davis, supra, 104 Cal.App.4th at pp. 1446-1447.)

In this case, defendant failed to appear in court as ordered for a progress report. This appearance for a progress report was unquestionably part of defendants drug treatment regimen. A probationer on formal probation is not ordinarily required to appear in court for progress reports. Typically, the probationer reports on a regular basis to the probation officer. Failure to report to a probation officer may sometimes not be drug related. (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1209; In re Taylor (2003) 105 Cal.App.4th 1394, 1399 and fn. 7.) Thus, this condition of progress reports in court is closely associated with Proposition 36 probations. Defendants failure to appear in court for a progress report was drug related. Since this was defendants first violation of probation and the prosecution made no attempt to establish that defendant posed a danger to others, the trial court erred when it revoked probation and ordered defendant to state prison.

DISPOSITION

The order revoking defendants probation and directing execution of the previously imposed three-year state prison sentence is reversed. The trial court is directed to enter a new and different order, permitting defendant to remain on probation and exercising its discretion as to any modifications to the conditions of probation, such as additional participation in a drug treatment program.

We concur: TURNER, P. J., and ARMSTRONG, J. --------------- Notes: The prosecution concedes that defendants failure to participate in his drug treatment program is a violation of a drug-related condition of probation.


Summaries of

People v. McCoy

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
B160754 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. McCoy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL MCCOY, Defendant and…

Court:Court of Appeals of California, Second District, Division Five.

Date published: Nov 6, 2003

Citations

B160754 (Cal. Ct. App. Nov. 6, 2003)