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The People v. Shawn Anthony Ireland

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 6, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHAWN ANTHONY IRELAND, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Robie ,j.

P. v. Ireland CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Shasta)

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

BACKGROUND

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 follow-up on the first petition.

On February 4, 2010, before disposition on the second petition, the People filed a third petition for revocation of probation, alleging defendant violated probation by failing to appear in court on January 29, 2010.

On February 5, 2010, defendant was arrested.

On February 23, 2010, defendant admitted the probation violations of both the second petition (filed on January 29) and the third petition (filed on February 4).

On April 7, 2010, the trial court held a sentencing hearing. Defendant requested reinstatement on Prop 36 probation and presented evidence of amenability to drug treatment. A drug treatment program supervisor testified defendant was a "good candidate" for her structured, Christian-based program. Defendant testified his noncompliance with probation was due to his being under the influence of drugs. He is addicted. He wants to enter a program and thinks he could benefit from one. The defense also called a police officer who testified defendant appeared to have been using drugs when arrested on February 5, 2010.

The trial court revoked probation, stating it was the third petition, "so he's not eligible to Prop. 36. But for Prop. 36, he was ineligible for probation based on two or more prior felony convictions. [¶] And that, coupled with the fact that he has a record of violating parole and probation that spans from 20 years, probation is revoked, not reinstated."

The trial court sentenced defendant to the upper term of three years on the methamphetamine case, and a consecutive term of eight months (one third of the middle term) on the Vicodin case, plus one year for each of the prior prison term enhancements, for a total of five years and eight months.*fn2 The trial court gave defendant 186 days' presentence credit (93 actual and 93 conduct credits under Penal Code*fn3 section 4019).*fn4

DISCUSSION

Prop 36 diverts nonviolent drug offenders from incarceration into community-based drug treatment programs. (§ 1210.1; People v. Hazle (2007) 157 Cal.App.4th 567, 572.) Section 1210.1 requires the trial court to place on Prop 36 drug treatment probation any person convicted of a nonviolent drug possession offense. (Legislative amendments to Prop 36 in 2006 were held invalid in Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366, 1375-1379, review den.)

Prop 36 anticipates that drug abusers often initially falter in their recovery and gives them several chances at probation before permitting a court to impose jail time. (People v. Hazle, supra, 157 Cal.App.4th at p. 572.) The first time an offender violates a drug-related condition of probation, the offender is entitled to be returned to probation unless he or she poses a danger to others. (§ 1210.1, subd. (f)(3)(A).) The second time he or she violates a drug-related condition of probation, he or she is entitled to be returned to probation unless he or she poses a danger to others or is unamenable to treatment. (Id., subd. (f)(3)(B).) Upon a third drug-related violation of probation, the trial court loses discretion to reinstate Prop 36 probation: "If the alleged probation violation is proved, the defendant is not eligible for continued probation under [Prop 36]." (§ 1210.1, subd. (f)(3)(C).)

"What is important here is not how many violations of probation there were, but how many separate noticed motions to revoke defendant's probation were properly before the trial court. Under Proposition 36, defendant was entitled to three distinct periods of probation before he lost his eligibility." (People v. Enriquez (2008) 160 Cal.App.4th 230, 239.)

The People argue it is the number of times the state "moves" to revoke probation that counts, and here the state moved to revoke probation three times. However, as we said in People v. Enriquez, supra, 160 Cal.App.4th at page 233: "In People v. Hazle (2007) 157 Cal.App.4th 567 . . . , this court concluded that what appears to be a third petition to revoke a defendant's probation under Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000) for drug-related reasons may not be treated as a separate noticed motion to revoke probation if the defendant was not on notice of the second petition at the time of the conduct underlying the third petition." In Enriquez, we "reiterate[d] that conclusion and add[ed] to it another conclusion that reasonably follows from the first--a second petition may not be treated as a separate noticed motion to revoke probation if the defendant was not on notice of the first petition at the time of the conduct underlying the second petition. And where . . . both situations exist, then what appear to be three separate petitions to revoke probation must be treated as one, and the defendant's Proposition 36 probation cannot be revoked, no matter how many violations of probation may be involved, unless the state proves the defendant poses a danger to others." (Enriquez, at p. 233.)

Here, the third petition may not be treated as a separate noticed motion to revoke probation because defendant was not on notice of the second petition at the time of the conduct underlying the third petition.

Thus, the third petition was based on defendant's conduct in failing to appear in court on January 29. The court order for defendant to appear on January 29 was for follow-up on the first petition. The People filed the second petition in court on January 29, but defendant was not there and therefore had no notice of the second petition at the time he failed to appear on January 29 for follow-up on the first petition.

As we have indicated, 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 at the hearing of the second petition (which was filed on the same day, January 29). However, we see no indication that defendant was given notice of a January 29 hearing on a second petition.

We reject the People's argument that defendant had, and failed to meet, the burden to raise and prove that he had no notice of the second petition at the time he committed the conduct that was the subject of the third petition. The People cite authority that inadequate notice should not be implied from a silent record. (People v. Hawkins (1975) 44 Cal.App.3d 958, 967; People v. Baker (1974) 38 Cal.App.3d 625, 629.)

Here, the issue is not inadequate notice but lack of notice. 1, said the record should affirmatively demonstrate service of notice on the probationer. Baker rejected the appellant's argument that he was not given notice of the probation violations because the record demonstrated otherwise. (Id. at p. 629.) Baker said it would not imply inadequate notice from a record that was silent as to exactly how notice was given. (Ibid.)

We said in People v. Hazle, supra, 157 Cal.App.4th at page 576, that the requirement that the People must move three times "encompasses the ordinary rule . . . that a motion, to be effectual for purposes of having a disqualifying impact on the probationer, must be served on the probationer. That way, the possibility or likelihood of losing Proposition 36 eligibility is brought home to him or her, providing an incentive to stop the errant behavior. (Italics omitted.) When no notice of one petition is given before the conduct underlying the next petition occurs, it would be improper to treat the result as if the People had made separate noticed motions (though a consolidated hearing may be proper). (Id. at p. 577.) We also said in People v. Enriquez, supra, 160 Cal.App.4th at page 233, that a second petition may not be treated as a separate noticed motion to revoke probation if the defendant was not on notice of the first petition at the time of the conduct underlying the second petition.

Accordingly, the People had the burden to prove notice. Although defendant did not expressly assert lack of notice, there was no apparent need to do so because the trial court at the sentencing hearing allowed defendant to present witnesses on defendant's amenability to drug treatment -- evidence which would have been immaterial had the trial court lacked discretion to reinstate Prop 36 probation. It was not until after the presentation of evidence and defense counsel's plea for reinstatement on Prop 36 probation that the trial court, immediately before sentencing defendant to prison, said it lacked discretion to reinstate Prop 36 probation because this was the third petition for probation violation.

Moreover, the record affirmatively shows lack of notice. Thus, the second petition on its face asked the trial court to revoke probation 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 prior notice to defendant related to the first petition. The probation assistant could not have notified defendant on January 8 of a hearing on the second petition because the second petition was not written until January 27 and 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 January 29 as the court date for the second petition.

Thus, defendant's failure to appear in court on January 29, 2010, was unrelated to the second petition and related only to follow-up on the first petition. Neither the second nor the third petition was being litigated on January 29, 2010, when defendant failed to appear in court.

We conclude the adjudication of the second and third petitions together constituted only a second petition for Prop 36 purposes.

The People alternatively argue that, even if the trial court had discretion to reinstate Prop 36 probation, the trial court impliedly found defendant unamenable to treatment, justifying denial of reinstatement for this second probation violation under section 1210.1. The People say the trial court impliedly found defendant unamenable based on undisputed facts that defendant had a criminal history, including a history of parole and probation violations; the probation officer recommended prison even if defendant was eligible for regular probation under section 1203; defense counsel in requesting Prop 36 reinstatement said "I'm not certain that Prop. 36 is the correct route for [defendant]"; and the trial court denied defendant's requests to reduce bail. We reject the People's argument.

At the sentencing hearing, the trial court said, "This is third petition in 09 F 6979 so he's not eligible to Prop. 36. But for Prop. 36, he was ineligible for probation based on two or more prior felony convictions. [¶] And that, coupled with the fact that he has a record of violating parole and probation that spans from 20 years, probation is revoked, not reinstated." The trial court did not consider amenability to treatment because it considered defendant ineligible for Prop 36 reinstatement. Defendant's ineligibility for regular probation (§ 1203) based on two or more prior felonies does not imply a finding of unamenability for drug treatment. Section 1210.1, subdivision (a), says nonviolent drug offenders "shall receive probation," "[n]otwithstanding any other provision of law," except as provided in subdivision (b). The People do not show that any subdivision (b) exception applies in this case.

The People do suggest applicability of an exception, in that a trial court may view a defendant's repeated refusals to enroll in drug treatment as an implied refusal to accept drug treatment as a probation condition, warranting denial of Prop 36 probation. (§ 1210.1, subd. (b)(4) [Prop 36 does not apply to defendant who refuses drug treatment as probation condition]; People v. Guzman (2003) 109 Cal.App.4th 341, 349-350 [trial court did not err in concluding defendant's failure to report to drug treatment facility was a refusal to accept drug treatment within meaning of § 1210.1, subd. (b)(4)].)

However, the trial court did not rule on this basis.

We conclude the trial court prejudicially erred in believing it lacked discretion to reinstate defendant on Prop 36 probation. (People v. Hazle, supra, 157 Cal.App.4th at pp. 577-578 [judgment reversed for trial court error in denying Prop 36 reinstatement].)

As to remedy, defendant asks that we order the trial court to reinstate probation based on the evidence he already presented. The People ask that we let the trial court decide for itself. We agree with the People that the appropriate remedy is to remand for the trial court to exercise its discretion in deciding whether to reinstate probation.

DISPOSITION

The judgment is reversed and the case is remanded for the trial court to consider whether to reinstate defendant on Proposition 36 probation.

We concur: HULL , Acting P.J. BUTZ ,J.


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