Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE285445, Charles W. Ervin, DeAnn M. Salcido, Louis R. Hanoian, Lantz Lewis, Evan P. Kirvin, Judges.
HALLER, J.
Ray Webb appeals the sentence entered on his guilty plea to felony methamphetamine possession and misdemeanor resisting arrest. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 148, subd. (a)(1).) He contends the court failed to properly assess his eligibility for drug court probation and Proposition 36 probation (Pen. Code, § 1210 et seq.). These contentions are without merit and we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Webb was charged with felony methamphetamine possession, misdemeanor resisting arrest, and misdemeanor marijuana possession. Webb entered a negotiated guilty plea to the first two counts, felony methamphetamine possession and misdemeanor resisting arrest. The plea agreement included dismissal of the third count and dismissal of all allegations pertaining to Webb's prison priors. The People agreed not to oppose local time and did not object to Webb's participation in a drug court or to a grant of probation on the felony offense. Before the plea was entered, the court informed Webb there was no guarantee he would be found eligible or suitable to participate in drug court probation.
There are three types of drug court probation available in San Diego County: (1) Proposition 36 probation (Pen. Code, § 1210.1, subd. (a)); (2) pretrial drug diversion (Pen. Code, § 1000 et seq.); and (3) post-conviction "drug court" probation. The third type is the program that is the focus of this appeal. This program is provided by the San Diego Superior Court through state and federal funding (see Health & Saf. Code, §§ 11970.1, 11999.30), and is not statutorily mandated. All further references to drug court are to this nonstatutory program.
Accordingly, Webb pled guilty to the first two counts. However, rather than setting a sentencing date, the court ordered Webb to appear before the drug court for initial screening. The court explained the screening would determine Webb's eligibility and suitability for participation in the drug court.
The next day, a hearing was held in the drug court and an initial screening was scheduled for the following week. At the second drug court hearing, Webb's initial screening was continued because Webb was to undergo knee surgery in the next few days. Two weeks later, on July 9, a third hearing was held in the drug court. At that hearing, the drug court again continued Webb's initial screening because of "medical issues which will be addressed" at a hearing three months later in October. On October 15, a fourth hearing was held in drug court. The court minutes indicate Webb was screened and found unsuitable for its drug treatment program due to his "medical conditions." The drug court ordered a full probation report for sentencing.
Although Webb attempted to obtain a copy of a reporter's transcript for this hearing, a court reporter has certified that there were no proceedings reported on that date.
At the sentencing hearing in mid-November, Webb asked to be referred to the drug court for rescreening. Defense counsel said Webb was previously found unsuitable for drug court participation in October because at that time he was taking very strong pain medications. Counsel indicated Webb had just undergone knee surgery and was unable to sit for long periods of time or "travel from place to place" as would be required for participation in the drug court. Defense counsel requested the rescreening not take place for another four weeks because Webb was still taking pain medications.
The court granted Webb's request and stayed his sentencing pending the rescreening. The court ordered Webb to return to the probation department that day for a full probation report and stated Webb would be sentenced in December if the drug court did not accept him into its program after rescreening.
In December, the drug court held the rescreening hearing. The court again found Webb unsuitable for participation in the drug court. At the hearing, the court explained that counsel and the drug court's support staff had discussed whether Webb was "amenable to a drug court program." The court stated that "after receiving input" it found Webb unsuitable for participation in the drug court. Neither Webb nor his counsel objected to the court's conclusion or offered any basis to show he would be suitable for the program. The court allowed Webb to remain free on bail on the condition that he report immediately to probation and finish his presentence report. The sentencing hearing was scheduled for January.
Webb reported to probation, but chose not to finish his presentence report. Webb instead rescheduled his interview for the following week. However, Webb failed to appear for the rescheduled meeting and did not attempt to contact the probation department to make other arrangements.
At the sentencing hearing in January, the court indicated it had received a supplemental probation report. After the judge held a sidebar, the court denied Webb probation and sentenced him to the upper three-year term.
DISCUSSION
I. Drug Court Eligibility
Webb contends the court erred by failing to "make an adequate assessment" of his eligibility for post-conviction drug court.
The contention is waived because Webb did not object to the court's determination in the proceedings below. (People v. Scott (1994) 9 Cal.4th 331, 353.)
In any event, the argument is without merit because a defendant convicted of a felony, who is not eligible for Proposition 36 probation, does not have a right to drug court probation. Webb does not cite any authority supporting that a hearing is required on the eligibility issue or that the defendant must be informed of the reasons for the eligibility determination. Unlike Proposition 36 probation, drug court probation is a privilege (and not a statutory right) and the court has broad discretion to evaluate whether the circumstances show the defendant would benefit from the program.
Moreover, even assuming Webb had a right to challenge the adequacy of the drug court's evaluation, the record affirmatively shows the court made an adequate assessment of his eligibility. The court initially found Webb was ineligible because the undisputed evidence showed Webb was taking strong pain medications, was unable to sit for long periods of time, and would be unable to travel to required drug court hearings. These factors were relevant in determining Webb's eligibility for drug court. A court may properly conclude that a defendant will not benefit from a drug court rehabilitation program if the defendant is unable to attend drug court hearings and cannot focus on participation in the drug recovery program because of his need to take strong pain medications. To successfully participate in a drug court program, a defendant must attend frequent court hearings and actively participate in drug treatment counseling.
The trial court thereafter granted Webb's request for a reassessment, but the drug court found Webb remained unsuitable. We reasonably infer from this determination that the court found unchanged the prior factors rendering Webb ineligible. There is no showing the court's finding was factually unsupported or otherwise improper.
To the extent Webb is arguing he was denied due process, the argument is without merit. As noted above, there is no authority supporting Webb's assumption he was entitled to some form of judicial process in the drug court eligibility determination. Moreover, due process means that a defendant had adequate notice and a meaningful opportunity to be heard. (In re Brian K. (2002) 103 Cal.App.4th 39, 42.) Those requirements were met here. The court conducted several drug court screening hearings. Webb had ample opportunity at these hearings to present facts showing his eligibility and to object to the court's reasons for finding him ineligible. There is nothing in the record showing the court did not consider all the relevant facts in making its determination. Webb argues that "[o]ne can only speculate on what basis these determinations were made." This argument is unavailing. The record affirmatively shows the court's determinations were based on specific facts showing Webb was not an appropriate candidate for drug court.
In this respect, defendant's reliance on Morrissey v. Brewer (1972) 408 U.S. 471 is misplaced. Morrissey held that in parole revocation proceedings, due process requires that a court make an on-the-record inquiry of the specific relevant facts used to make findings of suitability or unsuitability for parole revocation. (Id. at p. 489; see In re Wagner (2005) 127 Cal.App.4th 138, 146.) However, a discretionary determination whether a convicted felon would benefit from a drug court is not equivalent to a determination whether a parolee must return to prison because he or she violated a specific parole condition. Moreover, in this case, the court did identify specific facts used to make its finding of unsuitability for the drug court. Contrary to Webb's allegations, there was nothing "fundamentally unfair" about the proceedings.
II. Proposition 36 Mandatory Probation
Webb argues in passing that the trial court wrongly denied him Proposition 36 mandatory probation.
Under Proposition 36, certain nonviolent drug offenders have the right to mandatory probation and diversion into a drug treatment program. (Pen. Code, § 1210.1, subd. (a); see People v. Canty (2004) 32 Cal.4th 1266, 1272-1273.) However, a defendant is ineligible for Proposition 36 probation and diversion if he or she "has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." (Pen. Code, § 1210.1, subd. (b)(2); People v. Canty, supra, 32 Cal.4th at p. 1275.)
Webb falls within this exception. He was convicted of both felony methamphetamine possession and misdemeanor resisting arrest in the same proceeding. The resisting arrest statute seeks to prevent conduct that is not necessarily related to drug possession or use. (Pen. Code, § 148, subd. (a)(1).) Thus, Webb was legally ineligible for Proposition 36 probation. (See Pen. Code, § 1210, subd. (d); see also People v. Canty, supra, 32 Cal.4th at p. 1279.)
Additionally, Webb mentions in a footnote the court did not state reasons for imposing the upper term. However, he does not challenge the imposition of the upper term on appeal. Moreover, the record does not show Webb objected to the upper term in the proceedings below, and therefore any argument would be waived. (People v. Scott, supra, 9 Cal.4th at pp. 353-355.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P.J., O'ROURKE, J.