IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
January 21, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HECTOR CHAVERA, DEFENDANT AND APPELLANT.
Super. Ct. No. CM032301
The opinion of the court was delivered by: Raye,p.j.
P. v. Chavera 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Hector Chavera entered a negotiated plea of no contest to possession of methamphetamine in exchange for the dismissal of recidivist allegations involving prior prison terms and the grant of drug-treatment probation. (Pen. Code, § 1210.1 [undesignated section references will be to this code].)*fn1 Among the conditions of probation that were not related to drug use was submitting proof (in the form of a log) of making at least 15 efforts each week to find a full-time job. The trial court sentenced defendant in accordance with the plea, suspending imposition of sentence.
The following week, defendant waived the filing of a formal petition to revoke probation and admitted he had violated the condition of probation requiring him to maintain a job log. After referring defendant to probation, the trial court declined to reinstate defendant on probation and sentenced him to prison in June 2010. It awarded 64 days of conduct credit for 65 days of custody.
On appeal, defendant contends the trial court abused its discretion in declining to reinstate him on probation. We also deem defendant to have raised the issue of his entitlement to an additional day of conduct credit, pursuant to a September 2010 amendment to section 2933, without further briefing. We shall affirm as modified.
The stipulated factual basis for the plea was the discovery during a consent search of 0.7 gram of methamphetamine hidden in the headliner of defendant's car. Defendant had fled from the car on the approach of police, leading them to detain him.
In imposing the negotiated disposition, the trial court noted defendant's extensive criminal record from 1986 to the present, which included 3 felony convictions, 11 misdemeanor convictions, and 11 violations of parole. The court cautioned him that it would give him very little leeway. It also chided him for his bad attitude toward his attorney.
In the course of admitting the violation of probation for failure to submit a log, defendant asserted that he had in fact found a job installing a floor at a motel. However, this job had not yet started and was for an uncertain number of hours.
Defendant filled out a written personal history form for the probation officer with bizarre and flippant responses. He told the probation officer that he considered the form a joke and distinguished himself from other people on drug-treatment probation, whom he referred to as "retards." Along with defendant's interview behavior, which seemed to indicate a short attention span, the probation officer was concerned whether defendant had any problems with his mental competence. Defendant claimed in the interview that he was disabled and no one would hire him. He also asserted that he was too busy with appointments to look for jobs or to obtain validation of his claimed disability. He nonetheless wanted to try to find work, because he enjoyed it. In the opinion of the probation officer, defendant did not have a sincere desire or willingness to comply with the terms of probation.
At the time of sentencing, defense counsel raised the issue of defendant's competence. The trial court found him "competent to continue with sentencing today." Defense counsel suggested a psychiatric referral for purposes of determining whether to reinstate probation. Defendant claimed he was heavily medicated for pain, which clouded his judgment. The prosecutor argued defendant was treating probation as a joke and should not be reinstated. The trial court found that defendant's three felony convictions made him ineligible for probation (§ 1203, subd. (e)(4)), and it did not find his to be an unusual case warranting probation. The court also asserted that it did not have any intention of reinstating defendant on probation even if he had been eligible, for which reason a psychiatric referral was unnecessary. It imposed a prison term. Defendant declined the court's offer of a referral to the California Rehabilitation Center.
Section 1210.1 allows probationers multiple opportunities for reinstatement on probation for drug-related violations of probation. (People v. Davis (2003) 104 Cal.App.4th 1443, 1447-1448.) However, the first time that a defendant violates a condition of probation that is not drug-related, that defendant thereafter "stands in the same shoes as any other probationer and . . . is subject to whatever sentencing statutes" would ordinarily apply, such as the statutory presumption against probation for a felony recidivist. (People v. Dixon (2003) 113 Cal.App.4th 146, 153-154; see § 1210.1, subd. (e)(2); § 1203, subd. (e)(4).)
Defendant acknowledges these principles. He contends that since he did not repeatedly violate conditions that were not drug-related or utterly fail to undergo drug treatment (as in People v. Johnson (2003) 114 Cal.App.4th 284, 300 and People v. Guzman (2003) 109 Cal.App.4th 341, 343, 350), the trial court abused its discretion in failing to provide "at least one more chance at complying with the conditions of probation" and should have imposed a short jail term instead, given indications that he was physically or mentally disabled and the high rate of unemployment in California.
Defendant fails to demonstrate that the trial court abused its discretion in declining to find this was an unusual case that warranted the grant of probation despite his three prior felony convictions. He had been warned that his criminal record would give him very little leeway in complying with the terms of probation, and therefore he cannot now claim that he should have been given multiple chances. He did not provide corroboration of his purported physical disability and claim of being too busy, nor does the record substantiate any diagnosed mental disability short of incompetence. The flippant manner in which defendant filled out the personal history form (and interacted with the probation officer), whether a function of undocumented heavy medication or not, did not bode well for either his ability or willingness to comply in future with the terms of probation. Moreover, the job market or any purported disability does not excuse his failure to comply with the term at issue. He was not required to find a full-time job, merely to document the efforts he undertook to find one, which he entirely abjured. We thus do not find any abuse of discretion on the part of the trial court in sentencing him to prison.
II Conduct Credits
Pursuant to this court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether the 2009 amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional conduct credits.*fn2
We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in section 2933 applies retroactively to all appeals pending as of September 28, 2010.*fn3 Because defendant had 65 days of actual custody, we thus modify the judgment to reflect that defendant has 65 days of conduct credits, not 64.
The judgment is modified to award defendant 65 days of conduct credit for a total of 130 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.