Opinion
C041225.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE POWELL, Defendant and Appellant.
When defendant David Lee Powell violated probation for the first time after pleading guilty to a nonviolent drug offense, the trial court revoked his probation and sent him to prison. The parties stipulated, and the court so found, that Powell did not present a danger to others. Powell appeals from the judgment, contending that under Proposition 36 the trial court lacked discretion to revoke his probation. We agree and will reverse.
BACKGROUND
By information filed in August 2000, the district attorney charged Powell with possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). On March 26, 2001 (all further unspecified calendar references are to that year), Powell pleaded guilty as charged. At the same time, the court granted his request for drug court diversion and deferred entry of judgment for three years.
On April 27, Powell was remanded to the custody of the County Sheriff without bail and a diversion revocation hearing was set for April 30. At the hearing, the court ordered Powell to participate in a two-week custody treatment program. On May 29, the court released Powell for direct transport to Right Roads Recovery Program.
Powell completed treatment at Right Roads and the matter was continued to July 2. On July 2, the court ordered him to attend 90 AA or NA meetings in the next 90 days and continued the matter for one week.
On July 16 and August 16, Powell appeared before the court and admitted that he had used cocaine. The first time, the court continued deferred entry of judgment and gave Powell a "last chance." On the second occasion, the court terminated the drug court program unfavorably and set sentencing for September 6, noting that Powell was eligible for Proposition 36 treatment.
On September 13, the court followed the probation officers recommendation that Powell be granted probation pursuant to Proposition 36. Sentence was suspended and Powell was placed on formal probation for a period of three years. He was released to the Skyway House program for residential treatment.
On November 1, the district attorney filed a petition re: violation of probation, alleging that Powell tested positive for cocaine on September 18 and had been terminated at Skyway House. He admitted these facts in open court.
At the sentencing hearing on April 25, 2002, defense counsel argued that Proposition 36 precluded the court from revoking probation and sentencing Powell to incarceration in the absence of a finding that he was a danger to the safety of others. Disagreeing, the court insisted it retained traditional discretion to revoke probation on a first violation in a "proper case." Finding that "it would be an absurdity" to continue him on probation, the court denied Powells application for probation and sentenced him to state prison for the midterm of two years.
APPEAL
I
Proposition 36 Discretion
As we explained in People v. Davis (2003) 104 Cal.App.4th 1443, modified 105 Cal.App.4th 1381b, review denied April 9, 2003 (Davis), "California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, on November 7, 2000. 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. By its terms, Proposition 36 requires the court to grant probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation. This initiative measure provided for a July 1, 2001, effective date. [Citations.]" (Id. at p. 1446.)
As the People concede, Proposition 36 applies to Powell, who was granted probation after the effective date of the statute. Powells first-time violation also constituted a "drug-related" condition of probation, i.e., a dirty cocaine test coupled with expulsion from his recovery program.
The issue presented on appeal is whether the court exceeded its jurisdiction when it revoked Powells probation after the first violation. The applicable statute is Penal Code section 1210.1, subdivision (e)(3)(D), which states in pertinent part:
"If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation . . . by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation 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. If the court does not revoke probation, it may modify probation and impose as an additional condition participation in a drug treatment program." (Italics added.)
The parties stipulated and the trial court expressly found there was no evidence that Powell was a danger to the safety of others. Nevertheless, the court felt that the above-quoted language did not abridge its ordinary discretion, in a proper case, to revoke probation and sentence a defendant to prison upon a first violation of a drug-related condition of probation. The courts view has been squarely rejected by published case law.
As we indicated in Davis, where a nonviolent drug offender violates a drug-related condition of probation for the first time and there is no showing that he poses a danger to others, Proposition 36 overrides the courts traditional discretion to revoke probation and incarcerate him. (Davis, supra, 104 Cal.App.4th at pp. 1446-1448.) We held that this interpretation of subdivision (e)(3)(D) was not only the only one consistent with Proposition 36s three-tiered progressive scheme for dealing with nonviolent drug offenders, but that any other interpretation would render the provision virtually superfluous because it would expand, rather than restrict, the courts ability to incarcerate drug offenders, in direct contravention of the obvious purpose of the statute. (Id. at p. 1448.)
Other appellate districts have reached the same conclusion. (In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1000; In re Taylor (2003) 105 Cal.App.4th 1394, 1396-1397 (Taylor ); People v. Murillo (2002) 102 Cal.App.4th 1414, 1421.) As the court plainly stated in Taylor , "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.]" (Taylor, supra, at p. 1397, some italics added.)
The People acknowledge that Davis and other decisions are contrary to the trial courts decision, but "respectfully disagree." We adhere to Davis and the unanimous case precedent in accord with it. The trial court exceeded its statutory authority in revoking Powells probation after a first-time violation of a drug-related condition.
II
Deemed "Repeated" Violations of Probation
The People urge that, under the unique circumstances of this case, in the event this court fails to disapprove Davis Powell ought to be deemed to have violated his probation not once, but multiple times. The basis for this argument appears to be that Powell repeatedly violated the conditions of his drug court/diversion program before being granted probation, and that the trial court made clear that it had no patience for giving him another chance at rehabilitation.
The Peoples argument does not "interpret" the statute — it urges that we rewrite it. The People would have us expand the scope of Proposition 36 such that unsatisfactory performance during a drug diversion program prior to any grant of probation would constitute a violation of probation. Yet subdivision (e)(3)(D) says nothing about a defendants performance while on drug court or diversion programs; its provisions do not come into play until after probation is granted and has been violated.
Our role is to "`ascertain and declare what is in terms or in substance contained [in a statute], not to insert what has been omitted, or to omit what has been inserted (Code Civ. Proc., § 1858); a court may not rewrite a law, supply an omission or give words an effect different from the plain and direct import of the terms used. [Citations.]" (Farnow v. Superior Court (1990) 226 Cal.App.3d 481, 486.) It is not a judges role to insert provisions into a statute which substantially change its meaning and effect. That is the prerogative of the people or the Legislature.
People v. Williams (2003) 106 Cal.App.4th 694, which the People cite to support their argument, is of no aid to them. In Williams the court held, unremarkably, that violations of probation which occurred prior to the effective date of Proposition 36 may be considered in deciding whether to grant further probation under the statute. (Id. at p. 696.) The court neither stated nor implied that a defendants poor performance in drug court prior to being placed on probation may be deemed to be a probation violation for purposes of applying Proposition 36.
DISPOSITION
The judgment and the order revoking probation are reversed. The cause is remanded to the trial court to enter a new order reinstating probation and to resentence the defendant in conformance with Penal Code section 1210.1, subdivision (e)(3)(D).
We concur: BLEASE, Acting P.J., DAVIS, J. --------------- Notes: Upon a second proven violation of a drug-related condition of probation, the trial court must revoke probation if the People prove defendant is a danger to others or is unamenable to further treatment; upon a third violation of such a condition, the defendant is no longer eligible for probation and the trial court has a full panoply of options available to it on sentencing. (Davis, supra, 104 Cal.App.4th at pp. 1447-1448.)