The opinion of the court was delivered by: Robie ,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Shawn Anthony Ireland appeals from a judgment following the trial court's termination of his Proposition 36 (Prop 36) drug treatment probation in two cases for possession of controlled substances. Defendant argues the trial court incorrectly believed it lacked discretion to reinstate defendant on Prop 36 probation. We reverse the judgment and remand for the trial court to exercise its discretion in determining whether to reinstate Prop 36 probation.*fn1
In trial court case No. 09F6979 (the methamphetamine case), on September 22, 2009, defendant was charged with: (1) possession of a controlled substance, methamphetamine; and (2) being under the influence of a controlled substance, a misdemeanor. The pleading alleged four prior prison terms.
On December 8, 2009, defendant pled guilty to possession of methamphetamine and admitted two prior prison terms. The trial court placed him on Prop 36 probation.
On December 24, 2009, defendant was found in possession of Vicodin and other prescription medications without a prescription. This constituted a probation violation and a new offense.
On December 28, 2009, defendant was charged in new case No. 09F9672 (the Vicodin case) with felony possession of Vicodin.
Also on December 28, 2009, the People filed a first petition for revocation of probation in the methamphetamine case based on three probation violations: (1) defendant's December 24 possession of Vicodin and other pills; (2) defendant's failure to register with the appropriate law enforcement agency within 48 hours of being placed on probation on December 8; and (3) defendant's failure to report to the probation office on December 16 for orientation as directed by the probation officer on December 8.
On January 7, 2010, defendant admitted the probation violations alleged in the first petition in the methamphetamine case, and the trial court reinstated him on Prop 36 probation. Also on January 7, defendant pled guilty to possession of Vicodin in the Vicodin case and was placed on Prop 36 probation. As to both cases, the trial court ordered defendant to return to court on January 29, 2010, to show proof of compliance. On January 29, 2010, defendant failed to appear in court, and the trial court ordered a warrant. Also on January 29, 2010, the People filed a second petition for revocation, alleging defendant violated probation by: (1) failing to report to the probation department by January 8; and (2) failing to provide by January 27, 2010 (the date the petition was prepared) proof of drug registration, as ordered by the court on January 7, 2010.
As we discuss post, the People suggest defendant's failure to appear in court on January 29 was not only a failure to appear for follow-up on the first petition, but was also a failure to appear for a hearing of the second petition (filed the same day, January 29). However, we see no indication of notice to defendant about a January 29 hearing on a second petition. The second petition on its face requested that the court revoke probation forthwith and "Order the defendant to appear on 1/29/10 at 10:30 a.m. to show cause why this probation should not be modified or revoked. On 1/8/10, the defendant was notified by the undersigned Probation Assistant of the court date." However, the probation assistant could not have notified defendant on January 8 of a hearing on the second petition because the second petition alleged a probation violation occurring after January 8, i.e., that defendant violated probation on January 27 by failing to provide proof of drug registration on that date. Moreover, the trial court signed the order submitted by the People, revoking probation, but left blank the part of the proposed order setting a court date. Also, the court minutes bear no check mark next to the boilerplate about defendant being advised of allegations.
It thus appears defendant's failure to appear on January 29 was unrelated to the second petition and related only to ...