Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF083894
SCOTLAND, P. J.
During a traffic stop on July 15, 2008, Officer Eric Angle searched defendant Roy Swearengin, but did not find any contraband. Defendant’s passenger, Carolyn Cengiz, was searched by Officer Alisha Slater, who found two baggies of methamphetamine in Cengiz’s waistband. Cengiz said that defendant gave her the contraband and told her to hide it because he was on parole. Cengiz’s statement to Officer Slater was corroborated by a recorded conversation between Cengiz and defendant in the back of the patrol car while officers searched defendant’s residence. When defendant asked her whether the officers found the methamphetamine, Cengiz replied, “well of course.” Saying, “[y]ou said to stash it somewhere,” Cengiz told defendant: “Well where else am I going to put it? I put it in my pants and she [Officer Slater] fucking, she pulled my pants out and it [the baggies of methamphetamine] fell [out].” The search of defendant’s residence disclosed paraphernalia for smoking methamphetamine.
Despite defendant’s claim that he did not know there was methamphetamine in his van, and his denial that the paraphernalia at his residence belonged to him, a jury convicted him of possession and transportation of methamphetamine (Health & Saf. Code, §§ 11377, subd. (a), 11379, subd. (a)), and concealing evidence (Pen. Code, § 135). Thereafter, defendant admitted he had served a prior prison term. (Pen. Code, § 667.5, subd. (b); further section references are to the Penal Code unless otherwise specified.)
Defendant was sentenced to an aggregate term of three years in state prison. On appeal, he contends the trial court erred in finding him ineligible for Proposition 36 probation (§ 1210.1.) We shall affirm the judgment.
DISCUSSION
Proposition 36, which is codified in section 1210.1, generally requires probation and drug treatment in lieu of incarceration for certain nonviolent drug possession offenders (§ 1210.1, subd. (a)), but excludes other offenders from the program. (§ 1210.1, subd. (b); In re Varnell (2003) 30 Cal.4th 1132, 1135.) Five classes of defendants are excluded from Proposition 36’s alternate sentencing scheme, two of which are relevant to the present appeal as follows: “(b) Subdivision (a) shall not apply to any of the following: [¶]... [¶] (2) Any 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 or any felony. [¶]... [¶] (5) Any defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210....”
Defendant was convicted in the same proceeding of a drug possession offense and of the misdemeanor offense of concealing evidence. Thus, he was ineligible for Proposition 36 probation. (§ 1210.1, subd (b)(2); People v. Moniz (2006) 140 Cal.App.4th 86, 94.)
Therefore, at sentencing, defendant asked the court to dismiss the concealing evidence conviction so he would become eligible for Proposition 36 probation. (People v. Orabuena (2004) 116 Cal.App.4th 84, 96 [the court has the discretion under section 1385 to dismiss a misdemeanor count in order to grant Proposition 36 probation for a nonviolent drug offense].) Asserting that either defendant or Cengiz could be lying about which of them owned the drugs, defense counsel asked the court to “overrule the jury on the misdemeanor count.”
The trial court indicated it was disinclined to substitute its judgment for the jury’s, observing “[t]he system is sort of set up to give its best efforts as possible to the jury’s determination.” In fact, the court did not believe defendant’s story about the drugs belonging to Cengiz. Moreover, it did not see how it could strike the misdemeanor and give defendant Proposition 36 probation in view of comments by Florence Gainor, the felony drug court program coordinator, indicating that defendant was ineligible under section 1210.1, subdivision (b)(5).
Ms. Gainor interviewed defendant and concluded he was not a good candidate for felony drug court. The probation report stated that this was defendant’s fifth felony drug conviction within the last five years, he had participated in two separate courses of drug treatment, and he had not benefited from Proposition 36 probation. In March 2006, the court found defendant unamenable to treatment under Proposition 36. Defendant was on parole for less than a year when he committed the instant offenses. Under the circumstances, the court did not believe that defendant would be amenable to treatment even if it struck the misdemeanor offense, which it did not do.
Defendant asserts the trial court abused its discretion by failing to consider whether to strike the misdemeanor conviction pursuant to section 1385. In defendant’s view, the court simply found he was unamenable to treatment, but such a finding is not supported by clear and convincing evidence as required by section 1210.1, subdivision (b)(5). Relying on the factors relevant to determining whether to revoke Proposition 36 probation once it is granted, defendant argues the court must consider whether he committed a serious violation of rules at a drug treatment program, had repeated violations of rules, or continuously refused to participate in a program. (§ 1201.1, subd. (f)(3)(B).) Defendant claims there was no clear and convincing evidence supporting any of these factors, and the mere fact that he participated in two prior treatment programs is not sufficient to establish his unamenability as required by section 1210.1, subdivision (b)(5). According to defendant, we must remand the matter for the trial court to exercise its discretion and consider striking the misdemeanor and, if it does, to then take evidence on defendant’s amenability to treatment.
Section 1201.1, subdivision (f)(3)(B) provides in part: “If a defendant receives probation under subdivision (a), and for the second time violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or 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 either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant (i) has committed a serious violation of rules at the drug treatment program, (ii) has repeatedly committed violations of program rules that inhibit the defendant's ability to function in the program, or (iii) has continually refused to participate in the program or asked to be removed from the program....”
We do not interpret the trial court’s statements and ruling as does defendant. In our view, defendant asked the court to strike the misdemeanor conviction, and the court tacitly exercised its discretion and declined to do so because of defendant’s criminal history, the fact he had been found unamenable for treatment when he committed a drug offense in 2006, and Gainor’s assessment that defendant was not a suitable candidate for felony drug court. Defendant presents no analysis or authority demonstrating that the court’s consideration of his amenability to treatment in deciding whether to strike a disqualifying misdemeanor is subject to the same clear and convincing evidence standard as a determination of unamenability to treatment under section 1201.1, subdivision (b)(5).
Thus, the pertinent issue is whether the trial court abused its discretion in declining to strike the misdemeanor count, not whether there is clear and convincing evidence that defendant was unamenable for treatment.
“In exercising its discretion under section 1385, the court should consider the nature and circumstances of the defendant’s current crimes, [his] prior convictions, and the particulars of his... background, character, and prospects.” (People v. Orabuena, supra, 116 Cal.App.4th at p. 99.)
This information was available to the court in the probation report, and it is readily apparent from the court’s comments that it considered the necessary factors. This was not a situation where this was defendant’s first drug conviction and he was convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony -- a circumstance that might weigh in favor of striking the misdemeanor conviction so defendant would be eligible to receive the benefit of Proposition 36 treatment. In contrast, defendant had two failed attempts at drug treatment, had numerous felony drug convictions, was on parole when he committed the current offenses, denied responsibility for the current offense, and had a prior history of unsatisfactory performance on probation.
Under the circumstances, the trial court did not abuse its discretion in refusing to strike defendant’s misdemeanor conviction in order that he might be eligible for Proposition 36 probation unless it was barred by section 1210, subdivision (b)(5).
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J., SIMS, J.