IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
March 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARK STEVEN BAUER, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge. (Super. Ct. No. 1255923)
CERTIFIED FOR PUBLICATION
After Mark Steven Bauer pled guilty to possession of a controlled substance, the court placed him on Proposition 36 probation, but twice he violated probation.*fn2 The sole issue on appeal is whether the court's termination of probation and imposition of a state prison sentence were proper. We affirm.
Preliminarily, we summarize the factual and procedural history of the case. On January 13, 2009, a deputy sheriff found in Bauer's possession two syringes, one filled with a brownish liquid that tested presumptively positive for heroin. He admitted the syringes were his and the liquid was heroin.*fn3
On January 15, 2009, a two-count complaint charged Bauer in count 1 with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and alleged five prison term priors (Pen Code, § 667.5, subd. (b))*fn4 - one for forgery (§ 470), two for petty theft with a prior (§ 666), and two for possession of a controlled substance (Health & Saf. Code, § 11350) - and charged him in count 2 with possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). He pled not guilty and denied the priors.
On February 10, 2009, the court accepted a negotiated settlement. Bauer withdrew his guilty plea, pled guilty to count 1 (possession of a controlled substance), and admitted three prison term priors (one for petty theft with a prior and two for possession of a controlled substance). The court dismissed count 2 (possession of a hypodermic needle or syringe), struck the other two prison term priors (one for forgery and one for petty theft with a prior), and placed him on Proposition 36 probation for three years.
On April 28, 2009, the probation department filed an order to show cause alleging that Bauer violated probation by failing to report to the probation officer as directed, by failing to complete substance abuse treatment, by failing to register under Health and Safety Code section 11590, and by failing to complete AIDS education. The probation department recommended that, if he were found to be in violation, he "be reassessed for motivation for continuation of treatment under Proposition 36." On July 29, 2009, he admitted that he was in violation of probation, which the court revoked, reinstated, and modified.
On August 31, 2009, the probation department filed an order to show cause alleging that Bauer again violated probation by again failing to report to the probation officer as directed, by again failing to complete substance abuse treatment, by again failing to register under Health and Safety Code section 11590, and by again failing to complete AIDS education. The probation department recommended that, if he were found to be in violation, his "participation in Proposition 36 be terminated" and he "be ordered to serve a lengthy period of incarceration." On September 23, 2009, the court revoked his probation and issued a bench warrant on his failure to appear in response to the order to show cause.*fn5
On February 10, 2010, Bauer characterized the issue before the court
not as "factual" but as "legal," admitted as "true" the allegations
that he "failed to report, failed to complete the treatment, failed to
register and failed to complete an AIDS education," and asked the
court to allow him "to be referred back to Prop 36 and complete the
program." After a lengthy colloquy with counsel, the court opined
that the law allowed imposition of sentence on a "non-drug-related
probation violation" after one violation, let alone two, and
additionally opined, with reference to section 1210.1, subdivision
(d)(3), that "there certainly is not good cause to extend [his drug
treatment services] beyond 12 months at this point."*fn6
Bauer requested a contested violation of probation
hearing, which began after the lunch recess that day.
At the contested hearing, the parties stipulated to the details of the violations of probation in the order to show cause filed on August 31, 2009:
"On July 29, 2009, the defendant was directed by the Court to report to the Probation Department by July 31, 2009. The defendant failed to report as ordered by the Court.
"On February 10, 2009, and July 29, 2009, the defendant was directed to enroll in and complete substance abuse treatment. As of the writing of this report, the defendant is not enrolled in or attending treatment.
"On February 10, 2009, and July 29, 2009, the defendant was directed to register pursuant to 11590 of the California Health and Safety Code. The defendant has failed to provide verification of registering pursuant to 11590 of the California Health and Safety Code.
"On February 10, 2009, and July 29, 2009, the defendant was directed to complete an AIDS Education Program pursuant to 1001.1 of the California Penal Code. The defendant has failed to provide verification of completing AIDS Education."
As the sole witness at the contested hearing, Bauer testified that he went to one substance abuse treatment class "a long time ago," that he had a seizure afterward for which he was in the hospital for three days, and that he needed the help he thought Proposition 36 could provide. "Mr. Bauer," the court said, "if I thought that there was something we could do that would make a difference for you, I would certainly do it, but at this point I just don't see that that is the case. It looks to me like you haven't followed through with probation to any appreciable degree at this point." The court found a "second violation of probation as to treatment, registration and AIDS education," "a non-Prop 36 violation for failure to report," and "no good cause" to order an extension of treatment services. (Cf. § 1210.1, subd. (d)(3).) The court terminated probation and imposed an aggregate four-year four-month state prison sentence consisting of the mitigated 16-month term on the possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and a one-year term on each of the three prison term priors (§667.5, subd. (b)).
Bauer argues that the court's termination of probation and imposition of a state prison sentence were an abuse of discretion and a violation of due process arising out of a misinterpretation of section 1210.1, subdivision (d). His rationale is that his "probation terms, independently and together, stemmed from [his] drug conviction" and that "his violation of these terms was connected to his drug charge." He paints with too broad a brush. In re Taylor (2003) 105 Cal.App.4th 1394 (Taylor), the primary authority on which he relies, is distinguishable.
In Taylor, the failure of a Proposition 36 probationer to report to his probation officer for testing was drug-related. (Taylor, supra, 105 Cal.App.4th at p. 1399.) In a carefully limited holding, Taylor held "only that when the probation violation is the failure to appear for an appointment to be tested, then the appointment is a drug-related condition." (Id. at p. 1399, fn. 7, italics added.) Here, nothing in the record shows, let alone intimates, that Bauer failed to report to his probation officer to be tested.
Even so, Bauer goes on to paint with a broader brush. He argues that the "sole purpose for [his] reporting to probation was related to his drug offense, treatment, and monitoring" so "there were no reasons for [his] probation conditions other than to assess whether [he] was complying with the drug-related conditions of his probation." His argument both proves too much and too little. He is not a Proposition 36 probationer who "commences drug treatment and falters" but one who essentially "made no effort whatsoever to comply with his drug treatment probation." (People v. Guzman (2003) 109 Cal.App.4th 341, 349-350, citing § 1210.1, subd. (b)(4);*fn7 cf. People v. Friedeck (2010) 183 Cal.App.4th 892, 895-896.) A Proposition 36 probationer with "an abysmal probation record" of "repeated and flagrant violations of probation" shows that he or she has, "in effect, 'refuse[d] drug treatment as a condition of probation'" and "is thus ineligible for another reinstatement of Proposition 36 probation." (People v. Johnson (2003) 114 Cal.App.4th 284, 303, quoting § 1210.1, subd. (b)(4).) That is Bauer's fate.*fn8
The judgment is affirmed.