Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Scott Millington, Judge., Los Angeles County Super. Ct. No. SA049834.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, Ana R. Duarte and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
On August 6, 2004, following a denial of his motion to suppress evidence under Penal Code section 1538.5, appellant pleaded no contest to one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). The matter was set for an eligibility determination pursuant to Proposition 36. On July 7, 2005, the court suspended imposition of sentence and placed appellant on formal probation for a period of 36 months under the terms and conditions of Proposition 36. On May 18, 2006, the court found, pursuant to section 1210.1, subdivision (b)(4), that appellant was in violation of Proposition 36 and terminated him from the program based on his refusal to undergo treatment. The court placed appellant on terms and conditions of probation for an additional 36 months and ordered him to serve 365 days in the Los Angeles County jail.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the ground that he was denied his state and federal constitutional rights to due process because the trial court erroneously refused to reinstate him on Proposition 36 probation when the evidence was insufficient to prove that appellant voluntarily refused treatment under the drug program.
FACTS
The record shows that at his July 7, 2005 eligibility hearing, appellant was placed on Proposition 36 probation and ordered to report to counseling within 72 hours. The trial court ordered him to report back on July 28, 2005, to demonstrate proof of enrollment. On the same date as the hearing, appellant filed a notice of appeal.
On July 28, 2005, appellant failed to appear in court to demonstrate proof of enrollment. Probation was revoked and appellant was terminated from the Proposition 36 program. A bench warrant was issued. On August 1, 2005, appellant appeared and the bench warrant was recalled and quashed. A hearing was set for August 4, 2005. Appellant appeared on that date, and the court ordered a supplemental probation report and a program progress report for an August 25, 2005 Proposition 36 violation hearing. Appellant failed to appear for the hearing. His probation was revoked and a bench warrant was issued.
On August 30, 2005, appellant appeared in court. The court reinstated him on probation and he was again placed in the Proposition 36 program. The court ordered appellant to report to the Community Assessment Service Center (CASC) within three business days. Appellant was ordered to appear on September 16, 2005, for a progress report.
Appellant failed to appear on September 16, 2005. The court revoked his probation and terminated him from the Proposition 36 program. A bench warrant was issued. On April 26, 2006, appellant appeared in court and was remanded into custody. A Proposition 36 violation hearing was set for May 5, 2006. On that date the court ordered a supplemental probation report and scheduled the violation hearing for May 18, 2006.
At the hearing, the court heard the testimony of Korey Siler (Siler), a probation officer for Los Angeles County, who was assigned to CASC Number 12, Integrated Care Systems. Appellant was placed under Siler’s supervision, but Siler had never met appellant. When he learned that appellant was assigned to him, Siler made an appointment for appellant and sent him a letter on August 22, 2005. Siler addressed the letter to 5039 Montezuma Street in Los Angeles, which was appellant’s address of record as obtained from Criminal Adult Investigation. The letter instructed appellant to appear for an appointment on September 1, 2005. Appellant did not appear on that date, and to Siler’s knowledge appellant had never reported to the CASC for assessment. He based this knowledge on information contained in the TCPX system, which was a computer system used by all the treatment providers to relay information to all CASC sites. Appellant made no attempt to contact Siler.
On cross-examination Siler said he had also checked the probation department’s computer system to see whether appellant had contacted any probation department during the time he was under Proposition 36. Siler found nothing indicating appellant had reported to probation. Siler said that the system would not reflect if someone came in for an assessment and was not assessed but told to return at a future date. He stated that only a defendant’s counselor at the assessment site can input information in the TCPX system. Siler acknowledged there was no way for him to know if appellant received the letter he sent.
Appellant took the stand and said he was not living at 5039 Montezuma Street during the period of time that the letter was sent. He said he was homeless at the time and the Montezuma address dated back to 2002. He testified that he went to CASC the day after the July 7, 2005 hearing, and they did not assess him immediately. He waited an hour and someone told him to come back the next day. He did not go back because of a letter he received that same day regarding his appeal. The letter said “just to wait about a month, a real attorney person would pick up the case.” “A month or so” later “they” sent him another letter. Appellant telephoned two days after that and spoke to his appellate attorney. At the time of the hearing his appeal was still pending as far as he knew. Appellant never checked in with the probation officer. He never attended a treatment program because he was never assessed. Appellant said the CASC situation was all new to him and he did not call probation or return to the CASC because the appeal letter “overtook [his] mind.” He believed that when the appeal was “picked up,” “this thing was out.” He tried to show the appeal letter to the court on three separate days but was unsuccessful. When asked whether, despite the presumed pendency of his appeal, he would abide by the terms and conditions of Proposition 36 if he were reinstated to the program, appellant replied that he “would say yes to no contest,” but he felt he was not found guilty yet because his case was on appeal. When asked again if he would follow the orders of the court even though his appeal was pending, appellant replied that he would.
The denial of appellant’s motion to suppress was affirmed in this court’s unpublished opinion in case No. B184338, filed on May 11, 2006.
Appellant acknowledged that he did not contact his defense attorney, Mr. Herzog, and ask him if he needed to go to court. Except for the three times he had previously mentioned, he did not try to obtain the court’s assistance to follow through with Proposition 36 between September 16, 2005, and the date he was arrested on the warrant.
The court accepted a stipulation that his bailiff recalled seeing appellant in court one time in 2005 at approximately 3:00 p.m., and that the bailiff’s normal practice if someone came in at that hour was to tell them to come in the next day to deal with the warrant. The bailiff did not recall seeing appellant at any other time.
DISCUSSION
I. Appellant’s Argument
Appellant argues that the critical aspect of his case is that he believed he did not need to comply with the Proposition 36 conditions until his appeal from the denial of his motion to suppress evidence was decided. According to appellant, regardless of whether this belief was a justifiable excuse for not complying with the Proposition 36 program, it did not show that appellant was not amenable to drug treatment, nor that he had completely and unequivocally refused to undergo treatment. Therefore the trial court erroneously failed to follow the probation officer’s recommendation and reinstate appellant for a second time on Proposition 36 probation.
II. Relevant Authority
Section 1210.1, subdivision (a) provides in pertinent part: “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.”
Section 1210.1, subdivision (b) provides in pertinent part that the above-quoted provisions shall not apply to any defendant who falls within one of five enumerated categories, the greater portion of which relate to the defendant’s criminal history. One of the categories includes “[a]ny defendant who refuses drug treatment as a condition of probation.” (§ 1210.1, subd. (b)(4).)
Probation, once granted, may be revoked. After a hearing, a court may revoke Proposition 36 probation if the probation department moves for revocation after being notified by the treatment provider a defendant is unamenable to the treatment provided and all other forms of drug treatment programs. (§ 1210.1, subd. (d)(2).)
Section 1210.1, subdivision (f)(2) provides guidelines for revoking probation when a defendant violates probation either by committing an offense that is not a nonviolent drug possession offense or by violating a non-drug-related condition of probation.
Section 1210.1, subdivision (f)(3)(A) provides for revocation of probation when a defendant commits a nonviolent drug possession offense or violates a drug-related condition of probation. The trial court must revoke probation in these cases if the violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. (§ 1210.1, subd. (f)(3)(A).) When a defendant violates probation in the same way for a second time, the court must revoke probation if the violation is proved and the state proves that the defendant poses a danger to the safety of others or is unamenable to drug treatment. (§ 1210.1, subd. (f)(3)(B).) If a defendant violates probation in the same manner for a third or subsequent time and the alleged violation is proved at a hearing, the defendant is not eligible for continued Proposition 36 probation unless the court determines that the defendant is not a danger and would benefit from further treatment. (§ 1210.1, subd. (f)(3)(C).)
III. Proceedings Below
The court found that the issue before it was twofold. The first issue was whether there was a violation and the second was whether appellant had demonstrated a complete and unequivocal refusal to undergo drug treatment within the meaning of section 1210.1, subdivision (b)(4). He asked the parties to address the second issue.
Defense counsel stated it was certainly possible that appellant went to CASC and was told to come back without his appearance being noted in their computer system. Counsel noted that there was an appeal pending based on the denial of appellant’s motion to suppress. Counsel asked the court to find, based on appellant’s testimony and possible partial compliance, that he should be reinstated on Proposition 36.
The prosecutor argued that it was clear appellant thought that because he had an appeal pending he did not have to do anything. The prosecutor stated that a study of appellant’s file revealed that it was not his intention to ever comply with probation, and his failures to appear began before his appeal was filed. Appellant did not follow through with his promises. If he was confused he should have seen his defense counsel. Beginning on July 7, 2005, there were three bench warrants issued, and no entry in the TCPX system showing appellant had made contact with CASC. The prosecutor asserted that even when people are not enrolled they are given “pieces of paper” when told to return for a later appointment, and appellant had produced no documentation. Appellant acknowledged that he had lived at the address on Montezuma Street at one time, and the system had no way to help someone who does not check in with them and give a current address. The prosecutor acknowledged that the probation report recommended appellant be reinstated on a long-term drug abatement program, but the prosecutor believed that, based on “the totality of the file” appellant should be terminated.
The court stated it did not have much hope appellant would comply with the terms and conditions of Proposition 36 based on the records before it, and the court found parallels with the case of People v. Guzman (2003) 109 Cal.App.4th 341 (Guzman). Appellant had not done anything to ensure he was not in violation, and the court was inclined to rule that appellant had demonstrated a complete and unequivocal refusal to undergo drug counseling treatment. The court did not find credible appellant’s claim that his appellate attorney told him “don’t do anything.” The court believed appellant’s behavior indicated he did not have a willingness to undergo treatment, unless he could show some evidence that he relied upon someone such as his appellate attorney who said he did not have to undergo treatment because of his ongoing appeal. Defense counsel stated he did not believe such evidence was obtainable and submitted to the court.
The court enumerated appellant’s failures to appear and noted that “he has done nothing.” “Based upon all of that, the defendant not going to the CASC, not going to the probation department, never enrolling in a program. He says he came to this court, and it appears he may have come to this court once, but he had no contact with Mr. Herzog, his attorney of record in this matter. I don’t find his testimony very credible with regards to an individual named Dennis that told him not to deal with this anymore.” The court also noted that appellant was picked up involuntarily on a warrant in April 2006. The court found, based upon the record before it that “the defendant has demonstrated a complete and unequivocal refusal to undergo drug counseling treatment pursuant to People v. Guzman . . . and he comes within the exclusion of Penal Code section 1210.1 (b)(4). Therefore, Prop. 36 is terminated in this matter.”
IV. Reinstatement to Proposition 36 Probation Properly Denied
In making its ruling, the trial court relied upon Guzman, supra, 109 Cal.App.4th 341, and appellant seeks to distinguish his case from Guzman, which held that the initial eligibility requirements listed in section 1210.1, subdivision (b) continue to apply even after the initial grant of Proposition 36 probation. (Guzman, supra, at p. 350.) Guzman had argued that the eligibility provisions applied only to the initial grant of probation and that his failure to report for treatment could only be assessed under the provisions pertaining to probation violations. (Id. at p. 349.) Specifically, the court found that defendant Guzman, who had been granted Proposition 36 probation but had never reported for assessment, had demonstrated by his acts and omissions “a complete and unequivocal refusal to undergo drug treatment.” (Id. at pp. 349-350.) As noted previously, this is one of the five types of defendants who are excluded from Proposition 36 eligibility by section 1210.1, subdivision (b). (See Guzman, supra, at p. 347.)
Guzman left the country and absconded from the jurisdiction of the trial court for a period of five months instead of reporting to the drug treatment center or to his probation officer. Upon returning to the United States he appeared in court involuntarily after being arrested on a bench warrant. (Guzman, supra, 109 Cal.App.4th at pp. 343-344.) The trial court determined that it could conclude by Guzman’s actions that he refused to accept treatment and found it significant that Guzman had not voluntarily approached the court and asked for another chance but had appeared only after being arrested. (Id. at p. 345.) The Court of Appeal agreed with the People that a defendant “‘may refuse treatment by showing such a positive unwillingness to participate in or comply with any aspect of it, even the initial assessment that was designed to evaluate his treatment needs.’” (Id. at p. 349.) The court stated, “To be sure, the trial court would be justified in terminating the probation of a defendant who commences drug treatment and who later advises the court he or she no longer wishes to continue in treatment and would rather serve time. It follows necessarily, then, that the trial court can terminate the probation of a defendant who, by his conduct following the grant of probation refuses to undergo drug treatment.” (Id. at p. 350.)
Appellant argues that, unlike Guzman, he did not leave the state. He believed he did not need to comply with Proposition 36 conditions until his appeal from the denial of his motion to suppress evidence was decided. Appellant asserts that the prosecutor conceded that this was appellant’s motivation. Furthermore, the probation officer recommended that appellant be reinstated on probation and that he complete a long-term drug abatement program in lieu of county jail.
We conclude that the trial court properly found that appellant completely and unequivocally refused to undergo drug treatment. We agree with the trial court’s finding that appellant’s presence in Los Angeles was not a factor in his favor. Guzman’s five-month stay in Mexico provided some excuse for his failure to see his probation officer and begin drug treatment. Appellant was in Los Angeles the entire time, a period of nearly 11 months, during which he never went to the probation department or CASC and never contacted his lawyer. He did nothing that indicated a willingness to undergo treatment.
The court stated it would consider appellant’s conduct only from July 7, 2005, through the date of the hearing, which occurred on May 18, 2006.
It is true that, when asked what her position was with respect to whether appellant demonstrated a refusal to undergo treatment, the prosecutor replied, “If you listen to what he says, you read between the lines, it’s clear he thinks because he has an appeal pending, he doesn’t have to do anything. When you look at his actions in this case, that’s really what happened in this case.” In response to this comment, the court asked the prosecutor if she meant that appellant had a legitimate reason for doing what he did and that he did not demonstrate a complete and unequivocal refusal. The prosecutor clarified that she did not believe appellant ever intended to comply with probation and “deal with this.” Every time he agreed to do something, he did not follow through. “The same is true with his probation and his willingness to go to the program or anything else or comply. If he was confused, he would have come back and seen Mr. Herzog. But when you look at this, this type of activity occurred even prior to the time he even had this appeal.” When asked her position on reinstatement or termination, the prosecutor replied that “based on the totality of the file, my recommendation is that we just terminate this.”
With respect to the probation officer’s recommendation, we note that, although not opposed to appellant enrolling in a residential program as an alternative to jail time, the probation officer believed that appellant’s prognosis while on probation appeared poor due to his failure to report and abide by the terms and conditions of probation. Furthermore, a probation report is advisory in nature, and a court may accept or reject the officer’s recommendations. (People v. Slater (1989) 215 Cal.App.3d 872, 875.)
Appellant’s conduct during the period in question cannot be excused by the fact that he was appealing the denial of his motion to suppress, and the record belies his claim that he believed or was told that he need not comply with the court’s orders. Appellant appeared before the court three times after July 7, 2005. He failed to mention to the court or his attorney that he believed his pending appeal absolved him from his obligation to participate in counseling, although he allegedly received the letter regarding his appeal the day after the July 7, 2005 hearing. He allowed the court to order a probation report and a program progress report for an August 2005 probation violation hearing without discussing his pending appeal. He accepted the reinstatement into the Proposition 36 program and the court’s orders to report to CASC without mention of his appeal. He simply failed to appear in court for his progress report.
It is important to note that appellant asked for and received an opportunity for treatment of his substance abuse. Although treatment is offered in lieu of a jail sentence, it is not merely a stay-out-of-jail card, yet it is clear that appellant viewed it as such. Treatment is a means of helping the offender “succeed within the community,” to borrow language from the probation report. It is clear that appellant viewed treatment as a burden to be sidestepped if at all possible, and he chose to avoid any attempt to clarify what his responsibilities actually were under his grant of Proposition 36 probation. We agree with the trial court’s stated reasons for his finding that appellant evinced “a complete and unequivocal refusal to undergo drug . . . treatment,” and we conclude that no violation of due process occurred.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.