Opinion
F040186.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN BLAKE MOLINA, Defendant and Appellant.
William A. Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janis Shank McLean and Justain P. Riley, Deputy Attorneys General, for Plaintiff and Respondent.
An information filed June 30, 1998, charged John Blake Molina (appellant) with one count of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). On July 1, 1998, appellant pled guilty.
On July 30, 1998, the court suspended imposition of judgment and granted appellant five years formal felony probation. One condition of probation was that he enter a drug rehabilitation program lasting at least 120 days. On August 3, 1999, the probation department filed a report of probation violation with the superior court, stating appellant had failed to keep two scheduled meetings with his probation officer and did not pay his court-ordered fines. On August 13, 1999, the court revoked appellants probation and issued a bench warrant for his arrest.
Appellant appeared in court on October 5, 1999. The next day, he admitted the probation violations and was released on his own recognizance pending a probation report.
A supplemental report prepared by the probation office recommended that appellant not be given probation and, instead, be sentenced to 16 months in prison. Sentencing was set for November 4, 1999, but appellant failed to appear. His release status was revoked and a bench warrant was issued for his arrest.
Appellant was arrested on the bench warrant and ordered to appear January 23, 2002. After an additional supplemental probation report was prepared, appellant appeared for sentencing on February 22, 2002. At that time, appellant requested treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) because he was being sentenced after the effective date of Proposition 36. The court denied this request, finding appellant would have been sentenced years earlier before the effective date of Proposition 36 had he not absconded. Appellant was readmitted to a new five-year term of probation and was committed to jail for a maximum term of 365 days with no credit for time served.
DISCUSSION
I. Eligibility for Proposition 36 treatment
Appellant contends that although he pled guilty to the nonviolent drug possession offense in 1998, he is entitled to Proposition 36 treatment because he was not sentenced until February 22, 2002, after the effective date of Proposition 36. The trial court refused to sentence appellant under Proposition 36, stating:
"[T]he Courts not going to give him the opportunity under Proposition 36, hes not entitled to it, and Im not going to reward somebody by saying that because they waited to be sentenced for two, three, four years. [¶] ... [¶] His failure to appear for sentencing on a violation of probation is not a drug-related — is not a violation of the drug-related condition of probation."
California voters passed Proposition 36 on November 7, 2000. In general, Proposition 36 mandates drug treatment, rather than incarceration, for defendants, probationers, and parolees who commit qualifying offenses or violate qualifying conditions of probation or parole. (Prop. 36, § 1; see Historical and Statutory Notes, 51 Wests Ann. Pen. Code (2003 supp.) foll. § 1210, p. 221.) The provisions of the proposition are codified in sections 1210, 1210.1, and 3063.1 of the Penal Code, and division 10.8, commencing with section 11999.4, of the Health and Safety Code. This initiative measure provided for a July 1, 2001, effective date. (See Prop. 36, § 8; In re DeLong (2001) 93 Cal.App.4th 562, 569.)
Appellant correctly observes that various courts have determined Proposition 36 applies where an offense was committed before July 1, 2001, but entry of judgment was deferred and sentence imposed after the effective date of Proposition 36. (In re DeLong, (2001) 93 Cal.App.4th 562, 564; In re Scoggins (2001) 94 Cal.App.4th 650, 652.) In DeLong, supra, the defendant was found guilty on May 18, 2001, of a nonviolent drug possession offense with sentencing continued to July 12, 2001. The court in DeLong found that Proposition 36 applied to defendants convicted on or after July 1, 2001. "Conviction within the meaning of section 1210.1 means adjudication of guilt and sentencing. Therefore, a defendant found guilty before the initiatives effective date of July 1, 2001, but not sentenced until afterwards, was convicted after the effective date and comes within the ambit of Proposition 36." (In re DeLong, supra, 93 Cal.App.4th at p. 564.)
In Scoggins, supra, the defendant pled guilty to a nonviolent drug possession offense in 1998. Judgment was deferred under section 1000 et seq., and the defendant was placed under probation supervision for 18 months in a plan that included drug counseling. The court continued the case until August of 1999 in order to receive proof of completion of drug counseling and to terminate deferred entry of judgment. The case was continued several more times for receipt of proof of enrollment in and completion of a deferred entry-of-judgment program. (Scoggins, supra, 94 Cal.App.4th at pp. 652-653.)
In April 2000, the defendant was enrolled in an approved deferred entry-of-judgment program. The court ordered judgment deferred for an additional six months and set a progressive report hearing for October 2000. At that hearing, the defendant failed to appear and the court issued a bench warrant, terminated deferred entry of judgment, and reinstated criminal charges. One month later, the court reinstated deferred entry of judgment. (Scoggins, supra, 94 Cal.App.4th at p. 653.)
In June 2001, after several more continuations to provide proof of enrollment in and completion of a deferred entry-of-judgment treatment program, the defendant again failed to appear. The court again issued a bench warrant, terminated deferred entry of judgment, and reinstated criminal proceedings. On July 11, 2001, the court ordered the defendant convicted and sentenced him to two years of formal probation, including a 60-day county jail sentence. The trial court declined to sentence the defendant under Proposition 36 because the offense preceded the operative date of Proposition 36, and Proposition 36s provisions were to be applied prospectively. (Scoggins, supra, 94 Cal.App.4th at p. 653.)
The court in Scoggins determined the defendant was convicted on July 11, 2001, when judgment was entered and he was sentenced, and he was entitled to sentencing under section 1210.1, subdivision (a). The court rejected the Peoples contention that the defendant was convicted on October 6, 2000, when the court entered a judgment of conviction upon his failure to appear, or on June 13, 2001, when the court terminated deferred entry of judgment and ordered criminal proceedings reinstated. The appellate court noted that there was no noticed motion to enter judgment on either of those dates as required by section 1000.3. (Scoggins, supra, 94 Cal.App.4th at pp. 657-658.)
In contrast, in People v. Mendoza (2003) 106 Cal.App.4th 1030, the defendant pled guilty to a nonviolent drug possession offense in 1997. The terms of his plea agreement were that he would be placed on three years probation and serve one year in county jail. The defendant, however, failed to appear at sentencing scheduled for November 1997, and a bench warrant was issued for his arrest. (Id. at pp. 1031-1032.) The defendant was arrested in April 2002 pursuant to the bench warrant. The trial court denied his request for disposition under Proposition 36 and sentenced the defendant to 365 days in county jail. (Id. at p. 1032.)
The court in Mendoza agreed with the trial court and disagreed with the DeLong courts definition of the word "conviction" as used in the context of Proposition 36. Instead, it found that the language of section 1210.1, subdivision (a), "contemplates that to be `convicted a defendant need not be sentenced, because it is only once a defendant has been convicted—meaning adjudicated guilty by verdict or plea—that the defendant, if eligible, is then given the sentence of probation. The conviction thus precedes, rather than includes, the sentence." (People v. Mendoza, supra, 106 Cal.App.4th at p. 1034.)
We follow the reasoning set forth in DeLong and Scoggins and conclude the term "conviction," in the context of Proposition 36, includes the act of judgment and sentencing. In this case, sentencing occurred on February 22, 2002. The record shows that imposition of judgment and sentence were suspended initially on July 30, 1998, when appellant was granted formal felony probation for five years. Although the trial court revoked appellants probation and issued a bench warrant for his arrest on August 13, 1999, and again on November 4, 1999, when appellant yet again failed to appear, judgment and sentence were not imposed until February 22, 2002. Since this occurred after the effective date of Proposition 36, appellant is entitled to the provisions of Proposition 36.
In light of the fact the trial court suspended imposition of appellants sentence and placed him on felony probation, we conclude that appellants sentence was not a "conviction" for purposes of Proposition 36. (People v. Howard (1997) 16 Cal.4th 1081, 1092.)
Our Supreme Court recently decided that Proposition 36 treatment does not extend to those convicted before the initiatives July 1, 2001, effective date, even if their convictions had not yet become final on appeal as of that date. (People v. Floyd (2003) ___Cal.4th ___ .) Although the high court does not address the issue raised in this case, it does refer to the defendants sentencing date and ostensibly treats it as the date of conviction for purposes of Proposition 36.
In addition, Floyd unequivocally rejects the argument that failure to accord retroactive effect to Proposition 36 violates state and federal equal protection rights. (Id. at p. 8031.)
II. Validity of probation condition
As a condition of probation, appellant was ordered not to associate with "any person using, possessing, or under the influence of any controlled substance, including marijuana." Appellant contends, and respondent agrees, that this condition of probation is overly broad because it lacks a knowledge requirement.
We have recognized the need for similar knowledge requirements in probation conditions in the past. In People v. Lopez (1998) 66 Cal.App.4th 615, we found the condition of probation that the defendant "not ... be involved in any gang activities or associate with any gang members," to be overbroad, as it prohibited the defendant from associating with persons not known to him to be gang members. (Id. at pp. 622, 628.) As a result, appellants condition of probation must be modified.
DISPOSITION
The matter is remanded for resentencing under the provisions of Proposition 36. The condition of probation in the judgment is modified to provide that appellant is not to associate with persons he knows to be using, possessing, or under the influence of a controlled substance, including marijuana. In all other respects, the judgment is affirmed.
WE CONCUR: Buckley, Acting P.J. and Gomes, J.