Opinion
NOT TO BE PUBLISHED
APPEAL fro the Superior Court of San Bernardino County No. FNE700046 Joseph R. Brisco, Judge.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Quisteen S. Shum, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
After defendant repeatedly violated the terms of his drug court probation, the trial court denied defendant’s request to be reinstated in the drug court program; revoked defendant’s probation; and imposed the agreed-upon, previously suspended sentence of five years in state prison. Defendant’s sole contention on appeal is that the trial court abused its discretion in declining to reinstate his probation through the drug court program and imposing the agreed-upon suspended sentence. We reject this contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 27, 2007, defendant transported methamphetamine.
On May 9, 2007, defendant pled guilty to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and admitted that he had sustained a prior prison term (Pen. Code, § 667.5, subd. (b)). In exchange, defendant received a five-year suspended sentence and was granted probation for three years on various terms and conditions, supervised by the trial court through the drug court program. Defendant was subsequently welcomed into the drug court program and ordered to appear for drug court review on May 23, 2007.
Five days later, on May 14, 2007, defendant arrived late for a drug test, and the trial court revoked defendant’s probation and issued an arrest warrant.
On May 15, 2007, the trial court admonished defendant for arriving late to a test, ordered him to serve one day in county jail, and directed him to appear for drug court review on May 16, 2007.
On May 16, 2007, the court issued defendant’s release from jail, continued the hearing for drug court review to May 23, 2007, and ordered defendant to appear in court on that date.
On the morning of May 23, 2007, the trial court revoked defendant’s probation, as he had tested positive for drug use. A bench warrant was issued for his arrest based on his violation of the terms and conditions of probation. Later that day, at a drug court review hearing, the court admonished defendant for testing positive for drug use and for missing classes without giving prior notice to the drug court counselors. The court then ordered defendant to serve 30 days in county jail and thereafter complete the Gibson House program. The court then reinstated defendant’s probation.
The Gibson House program was described as a “60-day intensive program” that involved “one-on-one counseling” and which provided the participants with the tools needed to remain sober.
On May 30, 2007, the trial court granted a motion to release defendant to the Gibson House and ordered his release to a representative of that program. The court continued defendant’s probation pursuant to the original terms and conditions.
At a drug court review hearing on August 8, 2007, the trial court terminated defendant’s placement in the drug court program, as he had again tested positive for drug use. The court set the matter for sentencing on August 21, 2007, and remanded defendant into custody.
At the sentencing hearing, after hearing statements from defendant and argument from counsel, the court denied defendant’s request to be reinstated in the drug court program. The court then revoked defendant’s probation and imposed the agreed-upon previously suspended sentence of five years in state prison.
On August 30, 2007, defendant filed a notice of appeal and a request for certificate of probable cause. The trial court denied the request for certificate of probable cause.
II
DISCUSSION
Defendant contends the trial court abused its discretion by refusing to reinstate his probation through the drug court program and imposing the agreed-upon five-year suspended sentence. He claims that further treatment was available through the In-Roads program, the program was appropriate for him, and his sentence was excessive in light of his crime and underlying drug addiction. We disagree.
“Pursuant to Penal Code section 1203.2, subdivision (a) . . ., a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .’” (People v. Rodriguez (1990) 51 Cal.3d 437, 440, fn. omitted.) “Considerations of both law and policy dictate that the facts in a probation revocation hearing be provable by a preponderance of the evidence.” (Id. at p. 441.)
“Although [Penal Code] section 1203.2 does not expressly state that a defendant may be ‘reinstated’ on probation, numerous cases have recognized that the court’s authority to modify probation necessarily presumes the power to reinstate it. [Citations.] The issue presented in this appeal is whether this discretionary power to reinstate probation is lost where probation was originally granted after imposition of sentence. We conclude it is not.” (People v. Medina (2001) 89 Cal.App.4th, 318, 321.) “Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. ‘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 court’s 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.)
In the present matter, the trial court properly exercised its discretion by denying defendant’s request to be reinstated to the drug court program, revoking probation, and sentencing defendant to the previously suspended agreed-upon sentence. Defendant, who understood that positive drug tests were violations of the terms and conditions of his probation, admitted to the court that he had repeatedly violated that particular term of his probation. He acknowledged to the court, prior to sentencing, that he twice tested positive for drug use. In his opening brief, defendant also concedes that he had failed to remain drug free while in the drug court program and that he had tested positive for drugs after his release from the Gibson House program. In fact, defendant informed the court that he had relapsed within 24 hours of his release from the Gibson House program because he “walked off the train and walked in [his] old house.”
Defendant claims additional treatment was available through the In-Roads program and appropriate for him as he had admitted his addiction, expressed his desire to continue to receive treatment, and was “clearly apologetic for his inability to control his addiction.” However, the In-Roads program would not have been appropriate for defendant, as that program was not as intensive as the Gibson House program. As his counsel explained to defendant, the Gibson House program involves an “intense treatment process” and “is as intense as it can get.” Additionally, many of the basics that are taught in the In-Roads program are also taught in the Gibson House program. Hence, as the trial court observed, “[t]he reality is if Gibson House could not get [defendant] on the path, Drug Court’s not going to do it either[.]”
Based on this record, there was no reason to believe that defendant would have fared any better with the In-Roads program than he did with the Gibson House program. As noted previously, defendant told the court that he had relapsed within 24 hours of his release from the Gibson House program because he “didn’t follow what [he] was taught there at Gibson House.” As pointed out by the People, if defendant failed to utilize the sobriety tools and resources that were given to him in the 60-day intensive program, then he certainly was not going to gain anything from the less intensive In-Roads program, and there was no evidence to the contrary that he would.
Defendant has not shown that the court’s refusal to reinstate his probation was arbitrary, capricious, or by any means absurd.
We also reject defendant’s claim that the agreed-upon sentence of five years was excessive. This claim is not cognizable on appeal. First, defendant waived his right to appeal his sentence. “[A]n express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant’s waiver is knowing, intelligent and voluntary.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659; accord, People v. Panizzon (1996) 13 Cal.4th 68, 83.) Defendant here knowingly, intelligently, and voluntarily agreed to waive his right to appeal from the conviction and judgment after discussing every aspect of his plea agreement with his trial counsel.
Second, defendant’s failure to obtain a certificate of probable cause prohibits his challenge to his negotiated sentence. (People v. Panizzon, supra, 13 Cal.4th at pp. 78-79.) Here, the plea agreement expressly provided for a suspended sentence consisting of the upper term of four years for the underlying offense and an additional one-year term for the prison prior. In fact, defendant was the one who proposed the five-year sentence for the plea agreement. It is well settled that “a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.” (Id. at p. 79.) A defendant, therefore, is required to obtain a certificate of probable cause to attack a negotiated sentence on appeal. (Ibid.)
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., MILLER, J.