IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
October 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT MARTIN MCNEESE, II, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCR77893)
The opinion of the court was delivered by: Hoch , J.
P. v. McNeese 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Robert Martin McNeese, II, pled guilty to transportation of a controlled substance with a prior serious felony conviction. (Health & Saf. Code, § 11379, subd. (a); Pen. Code, §§ 667, subd. (b), 1170.12, subds. (a)-(d).)*fn1 The trial court placed defendant on probation pursuant to Proposition 36. (§ 1210 et seq.) Two months later, the district attorney petitioned for revocation of probation based on three violations of probation. Defendant admitted one violation in failing to show up at an appointment to schedule his community service. The court revoked defendant's probation and sentenced him to six years in prison.
On appeal, defendant contends (1) the trial court erred in revoking his probation for a drug-related violation of probation, and (2) even if the violation was not drug related, the trial court erred nonetheless because it did not understand that it had discretion to return defendant to Proposition 36 probation.
We agree that the trial court failed to exercise its discretion to determine whether to return defendant to Proposition 36 probation for a non-drug-related probation violation. Thus, we reverse the judgment.
According to the Tehama County Sheriff's arrest report that served as the factual basis for defendant's plea, he was driving a pickup truck when stopped by a sheriff's deputy for lack of a current vehicle registration decal. The deputy observed defendant attempt to hide something under the front seat. A search of defendant's person yielded a bag containing 0.8 grams of methamphetamine. Defendant admitted the bag belonged to him but stated that the drug was only for his personal use.
As part of a negotiated plea, defendant admitted felony transportation of a controlled substance and a prior serious felony conviction. (Health & Saf. Code, § 11379, subd. (a); §§ 667, subd. (b), 1170.12, subds. (a)-(d).) The plea bargain called for defendant to be placed on Proposition 36 probation with a stipulated eight-year prison term if he violated probation. Accordingly, the trial court placed defendant on Proposition 36 probation with various terms and conditions.
Two months later, the Tehama County District Attorney filed a petition for revocation. Although the petition was titled "First Violation," it actually alleged three instances in which defendant violated terms of his probation. Specifically, the petition alleged that defendant (1) failed to report to his probation officer, (2) failed to appear for a scheduling appointment with the community service officer in order to fulfill his community service requirement, and (3) was terminated from a Proposition 36 treatment program for failing to return after being granted a leave of absence.
Defendant admitted that he failed to complete 40 hours of community service as required for his probation. The court revoked probation and ordered the probation department to prepare a supplemental report.
At the sentencing hearing, defense counsel asked that defendant be returned to Proposition 36 probation during the following colloquy:
"[Defense counsel]: [¶] . . . [¶] We are asking the Court to look at this Defendant one last time, to give him one last opportunity to provide to the Court proof that he can successfully complete probation. He can go down and do his community service, get it done, and still be productive here in society, and follow the terms and conditions outlined by this Court. [¶] And we are asking the Court to follow that and grant -- give him a grant of probation in this particular matter.
"THE COURT: [Defense counsel], aren't my hands tied? These are non-Proposition 36 violations. He has a strike. He's not eligible for probation other than under Proposition 36. I mean, that's --
"[Defense counsel]: I understand, Your Honor.
"THE COURT: I mean, that's my view. If I'm wrong, let me know.
"[Defense counsel]: I will research it but --
"THE COURT: Okay. [Prosecutor]?"
After hearing from the prosecutor, the court concluded that "[d]efendant is no longer eligible for probation under Proposition 36. Defendant is not eligible otherwise for probation because of the strike allegation." Consequently, the court sentenced defendant to a six-year prison term.
Defendant timely filed a notice of appeal.
At the outset, we address the Attorney General's contention that defendant failed to preserve the argument that his violation was drug-related so that the court was required to reinstate his Proposition 36 probation.
As the People point out, our Supreme Court has admonished that, "[i]n order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (People v. Scott (1994) 9 Cal.4th 331, 351.) Had defense counsel failed to contend that defendant should be returned to Proposition 36 probation, we would agree that the claim was forfeited. (See ibid.)
However, defense counsel did state that "we are asking the Court to follow that and grant -- give him a grant of probation in this particular matter." Defense counsel did not argue that defendant could be returned to probation because his violations were drug-related within the meaning of Proposition 36. The record indicates that defense counsel was cut off in mid sentence when the court turned its attention to the prosecution for its response to the request for reinstatement to Proposition 36 probation. "Of course, there must be a meaningful opportunity to object" before we deem an issue forfeited. (People v. Scott, supra, 9 Cal.4th at p. 356.)
Defense counsel's request to return defendant to Proposition 36 probation and his indicated disagreement with the trial court's statement that it lacked discretion to reinstate probation sufficed to preserve the issue for review. Thus, we proceed to consider the merits of defendant's appeal.
II Whether Defendant's Violation of Probation was Drug-Related
Defendant argues that his violation of probation was drug-related and required the trial court to reinstate him to Proposition 36 probation. We disagree.
A. Proposition 36 Probation
Proposition 36 sets forth a statutory scheme in which defendants who are convicted of nonviolent drug possession offenses generally receive probation -- rather than prison or jail terms -- but with the condition of completing a drug treatment program. (§ 1210 et seq.; In re DeLong (2001) 93 Cal.App.4th 562, 566.) "Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. The first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. (§ 1210.1, subd. (e)(3)(D).)[*fn2 ] The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. (§ 1210.1, subd. (e)(3)(E).) Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration. (§ 1210.1, subd. (e)(3)(F).) Upon such a violation, the court regains its discretion to impose jail or prison time. (People v. Davis [(2003)] 104 Cal.App.4th [1443,] 1448.) Proposition 36 does not, however, extend the same grace to probationers who violate non-drug-related conditions of probation. The first time a probationer violates such a condition, the court has discretion to incarcerate the person. (§ 1210.1, subd. (e)(2).)" (In re Taylor (2003) 105 Cal.App.4th 1394, 1397-1398, fns. omitted.)
B. Defendant's Probation Violation
In this case, defendant admitted only a single instance of violating his probation. The People did not prove the validity of the additional two alleged violations of probation. Thus, defendant could be sentenced to prison only if his admitted violation of probation was non-drug-related. (§ 1210.1, subd. (e)(3)(D); People v. Atwood (2003) 110 Cal.App.4th 805, 810; see also People v. Tapia (2001) 91 Cal.App.4th 738, 740-741 [holding that probation may be revoked only for a violation that is either admitted by the defendant or proven by the People].)
The violation admitted by defendant arose from his failure "to appear for scheduling of an appointment for community service." Defendant argues that his obligation to perform 40 hours of community service was a drug-related condition because it served as the "functional equivalent" of employment or educational training for purposes of drug rehabilitation. Subdivision (f) of section 1210.1, provides that "[t]he term 'drug-related condition of probation' shall include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling."
The order placing defendant on Proposition 36 probation specifically referred to the condition at issue as "community service" -- not drug treatment, employment, vocational training, education, or counseling. Community service is not listed by subdivision (f) of section 1210.1 as a condition of probation deemed to be drug-related, and the record in this case does not show the community service requirement to have been imposed for the purpose of drug rehabilitation. Instead, the trial court required defendant to complete 40 hours of community service as a condition of probation separate from the requirement that defendant participate in a drug treatment plan. Although a community service requirement -- if fulfilled -- will likely decrease the risk of future criminality, its salutary effect does not render it "peculiar to defendant's drug problems or drug treatment." (People v. Dixon (2003) 113 Cal.App.4th 146, 152.)
Here, the trial court's imposition of community service as a condition separate from a treatment program indicated that the community service requirement was not intended to be related to his drug dependency. (People v. Dixon, supra, 113 Cal.App.4th at p. 152.) Defendant's failure to meet with the person responsible for scheduling his community service requirement did not impinge on the course of treatment for his drug abuse. (See In re Taylor, supra, 105 Cal.App.4th at p. 1399, fn. 7 [failure to meet with probation officer not drug related as even "such appointments might be related to a probationer's obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally" so long as the appointment was not for the purpose of conducting a drug test].)
Defendant's community service requirement in this case was unrelated to his drug treatment program obligation. Defendant's reliance on People v. Dagostino (2004) 117 Cal.App.4th 974 (Dagostino) does not change this conclusion. In Dagostino, the trial court revoked Proposition 36 probation based in part on the defendant's failure to meet with a mental health "gatekeeper." (Id. at p. 988.) The gatekeeper's job was to assess defendant's situation in order to refer him to the appropriate drug treatment program. (Id. at p. 992.) The Dagostino court reversed the revocation of probation by concluding that the failure to meet with the gatekeeper was drug-related. (Ibid.) Dagostino explains, "Since a person cannot be placed in the appropriate drug treatment program without being evaluated, it follows that a drug treatment regimen includes the initial evaluation, and appearing or failing to appear for that evaluation 'thus satisfies the definition of a drug-related condition of probation.' (In re Taylor, supra, 105 Cal.App.4th at p. 1398.)" (Dagostino, supra, 117 Cal.App.4th at p. 993.)
By contrast, the community service condition of probation was neither a prerequisite to receipt of drug treatment nor was it intended to constitute drug rehabilitation itself. We conclude that defendant's failure to appear for scheduling of community service was not a drug-related violation of probation.
III Discretion to Reinstate Proposition 36 Probation After a Non-drug-related Violation
Anticipating our conclusion that defendant's community service requirement was not a drug-related condition of probation, he contends the trial court misunderstood that it had discretion to return him to Proposition 36 probation. This contention has merit.
"[A] defendant may be excluded from the provisions of Proposition 36, and face incarceration as a condition of probation, if his or her probation violation was not drug related. (People v. Atwood, supra, 110 Cal.App.4th at p. 810.) '[A] defendant who has violated a non-drug-related condition of probation loses the "grace" granted to probationers otherwise subject to Proposition 36. [Citation.] At that point, the defendant stands in the same shoes as any other probationer and he [or she] is subject to whatever sentencing statutes bear on his [or her] sentencing.' (People v. Dixon (2003) 113 Cal.App.4th 146.) The court then has the full range of options otherwise available in a probation revocation proceeding, including imposing a term of incarceration as a new condition of probation or lifting the stay on a previously imposed term of incarceration. (People v. Davis, supra, 104 Cal.App.4th at p. 1448.)" (Dagostino, supra, 117 Cal.App.4th at p. 988.)
Thus, the trial court had discretion to reinstate defendant to Proposition 36 probation. However, the trial court did not exercise its discretion based on its belief that the court's hands were "tied" by the fact that the sole admitted violation of probation was non-drug related.
"When a trial court's failure to exercise its . . . discretion . . . is based on a mistaken belief regarding its authority to do so, the appropriate relief on appeal is to remand so that the trial court may exercise its discretion." (People v. Orabuena (2004) 116 Cal.App.4th 84, 99-100.) Accordingly, we remand this matter so that the trial court may exercise its discretion in determining whether defendant should be reinstated to Proposition 36 probation. Our opinion is limited to the conclusion that a trial court has discretion to reinstate defendant to Proposition 36 probation. We do not express any opinion about whether, on remand, the trial court should reinstate defendant to probation.
The judgment is reversed and the matter is remanded so that the trial court may hold a hearing and exercise its discretion to determine whether the defendant should be returned to Proposition 36 probation.
I concur: RAYE , P. J.
I concur in the opinion and the result except for Part II, B., concerning the meaning of "drug-related condition" in Penal Code section 1210.1, subdivision (f), as to which I concur in the result.
Subdivision (f) provides that "[t]he term 'drug-related condition of probation' shall include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling and family counseling," a violation of which precludes a sentence to prison.
The defendant failed "to appear for scheduling of an appointment for community service," a condition of probation, and the majority opinion concludes that community service is not within the definition of drug-related condition. They do so for the simple reason that community service condition was not "imposed for the purpose of drug rehabilitation," relying on the reasoning of various cases.
In my view, this apparently sensible conclusion does not sufficiently attend to the language of the statute. First, the list of matters deemed "included" in the term "drug-related condition" are not prefaced by modifying language subjecting them to a test of drug-related purpose. Rather, they appear to be categorical examples of conditions included within the term regardless of the purpose for their imposition. So viewed, we need not ask the purpose question for the Legislature has already answered it in the statute.
To view this otherwise requires the court to import modifying language nowhere to be found in the statute other than as an implication from the very phrase which the Legislature felt required amplification. Notwithstanding, I find linguistic refuge in other language to be found in section 1210.1. Subdivision (a) provides that "[a]s a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." The next sentence provides that "[t]he court may also impose as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service," suggesting that these are not appropriate drug treatment programs. (Italics added.) To confuse matters further, two of these items, vocational training and family counseling, are also to be found as matters included with the term "drug-related condition of probation" in subdivision (f). Noticeably missing from the included list in subdivision (f) is "community service", otherwise specified as an "also" condition in subdivision (a).
The Legislature clearly understood that community service could be imposed as a condition of Proposition 36 probation in subdivision (a) and chose not to include it as drug related in subdivision (f). I leave for another day the construction of the categorical items in subdivision (f).
BLEASE , J.
PLEASE SEE ATTACHED CONCURRING OPINION