People v. Dixon

• Citation: 5 Cal.Rptr.3d 917,113 Cal.App.4th 146
• Decision Date: 07 November 2003
• Docket Number: No. C042734.,C042734.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dexter Nathaniel DIXON, Defendant and Appellant.

5 Cal.Rptr.3d 917

113 Cal.App.4th 146

The PEOPLE, Plaintiff and Respondent, v. Dexter Nathaniel DIXON, Defendant and Appellant.

No. C042734.

Court of Appeal, Third District.

November 7, 2003.

Dale J. Blea, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Marc J. Nolan, Matthew L. Cate and John A. Thawley, Deputy Attorneys General, for Plaintiff and Respondent.

SIMS, J.

In this case, we hold that a general condition of probation, requiring a defendant to report by mail to his probation officer, is not a drug-related condition of probation under Proposition 36. We also hold that, in sentencing a probationer who violated such a condition, the trial court properly applied the presumption against granting probation contained in Penal Code section 1203, subdivision (e)(4) (defendant who has suffered two prior felony convictions in this state is presumptively ineligible for probation). (Further undesignated statutory references are to the Penal Code.)

FACTUAL AND PROCEDURAL BACKGROUND

On May 1, 2002, defendant Dexter Nathaniel Dixon pleaded guilty to possessing methamphetamine (Health & Saf.Code, § 11377) with the understanding he would be considered for Proposition 36 treatment. (§ 1210.1.) Defendant was told that if he violated probation "twice" with a "drug-related offense," he would be entitled to have probation reinstated and be referred back to counseling. However, defendant was also told if he violated probation for a reason other than a drug-related violation, he could be sent to prison. Defendant stated he understood.

On May 28, 2002, the trial court placed defendant on Proposition 36 probation, ordered him to spend 60 days in jail as a condition of probation with credit for the 60 days he had served, and released him from custody. Other pertinent conditions of probation imposed by the court were (1) report to the probation officer as directed and (2) participate in substance abuse counseling.

On June 5, 2002, defendant met with Probation Officer Leticia Paras-Topete. Defendant signed a form containing the Proposition 36 probation directives. Paras-Topete told defendant about his obligation to report to the probation department monthly by mail beginning July 5, 2002, because he was a Sacramento County resident. Defendant did not report.

On August 22, 2002, Paras Topete sent defendant a letter reminding him of his responsibility to report.

Defendant enrolled in a National Council on Alcoholism and Drug Dependence program in Sacramento. On September 10, 2002, Paras-Topete received a fax message from the program stating that defendant had failed to attend the program after July 1, 2002.

On September 11, 2002, a petition was filed alleging defendant had violated probation by (1) "[a]fter being advised by the probation officer of the requirement that he report by the fifth of each month by mail, he has failed to report since June 5, 2002...." and (2) "[a]fter being advised by the probation officer to attend substance abuse counseling ... he has failed to comply, in violation of the special condition that he participate in any program of counseling deemed appropriate by the probation officer and Mental Health...."

On October 18, 2002, a contested violation hearing was held. After Paras-Topete detailed the above facts, defendant admitted she had told him to report every month by mail. Defendant testified he thought under Proposition 36 he would have three chances to "mess up" and get his probation reinstated before a judge. Defendant said he did not have any money to pay for the drug program during the first month and thought he would be arrested if he went to his class. Defendant testified his fiancee was having a baby. He said he also became homeless and could not receive letters. Apparently disbelieving this testimony, the trial court found both charged violations true.

The trial court opined that a failure to report "absent other facts and findings is not a drug related violation of probation ...." The trial court concluded it was not mandated to reinstate defendant on Proposition 36 probation. The trial court stated if it did have discretion to place defendant back on Proposition 36 probation, it would not do so.

The trial court concluded defendant was presumptively ineligible for regular probation under section 1203, subdivision (e)(4). The trial court imposed a two-year prison term.

On November 20, 2002, defendant filed his notice of appeal.

DISCUSSION

I.

Defendant contends the trial court erred on May 28, 2002, when it sentenced defendant to 60 days in jail as a probation condition, in violation of section 1210.1, subdivision (a), which states in part: "[a] court may not impose incarceration as an additional condition of probation."

This issue is not cognizable. Defendant did not file a notice of appeal within 60 days of sentencing on May 28, 2002. (Cal. Rules of Court, rule 31(a).) This appeal is from the judgment imposing a prison sentence on November 18, 2002, following the probation revocation. Because he failed to file a timely notice of appeal, he cannot challenge the condition in this appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1094, 81 Cal.Rptr.2d 301, 969 P.2d 146.)

II.

Defendant argues the court erred by revoking probation based on his failure to complete a drug program, the second charged violation, in the absence of a finding he posed a danger to others. Defendant's argument concentrates on his failure to complete the drug program as an alleged violation of a "drug-related condition," as defined in section 1210.1, subdivision (e)(3)(A).¹ Both parties agree that failure to complete the drug program was a violation of a "drug-related condition." The question is whether defendant's failure to report by mail to his probation officer was a violation of a nondrug-related condition.

"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).) 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, 130 Cal.Rptr.2d 554, fns. omitted.)

Section 1210.1, subdivision (f) provides: "The 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."

In In re Mehdizadeh (2003) 105 Cal. App.4th 995 at page 1001, 130 Cal.Rptr.2d 98, and in In re Taylor, supra, 105 Cal. App.4th 1394 at page 1399, 130 Cal.Rptr .2d 554, the courts both held that a defendant's failure to report to his probation officer for drug testing constituted the violation of a drug-related condition of probation.

In People v. Atwood (2003) 110 Cal. App.4th 805, 2 Cal.Rptr.3d 67, defendant failed to keep a personal appointment with her probation officer thereby violating a condition of probation that required her to "[f]ollow all orders of [the] probation department." (Id. at p. 808, 2 Cal.Rptr.3d 67.) We held that since the record did not illuminate why the defendant had been ordered to appear in person to her probation officer (possibly for a drug test) the case had to be remanded to the trial court to allow the People the opportunity to present additional evidence on whether the condition of probation was "drug-related." (Id. at pp. 812-813, 2 Cal.Rptr.3d 67.)

By way of contrast, in People v. Goldberg (2003) 105 Cal.App.4th 1202, 130 Cal.Rptr.2d 192, the court opined in dictum that a general condition of probation, requiring a defendant to report to his probation officer, was a wow-drug-related condition. (Id. at p. 1209, 130 Cal.Rptr.2d 192.)

In the instant case, we do not have to decide whether a general condition of probation requiring a defendant to report personally to his probation officer, may qualify as a non-drug-related condition. Defendant was ordered to report by mail. This method of reporting could not have involved a drug test, nor was there anything else about reporting by mail that was peculiar to defendant's drug problems or drug treatment. We therefore conclude that the condition of probation requiring defendant to report by mail to his probation officer was a non-drug-related condition of probation and the trial court had discretion to incarcerate defendant. (In re Taylor, supra, 105 Cal.App.4th 1394, 1398,130 Cal.Rptr.2d 554.)

III.

When it refused to reinstate probation and sentenced defendant to state prison, the trial court remarked at various points in the sentencing hearing that it believed defendant was presumptively ineligible for probation pursuant to section 1203, subdivision (e), which provides:

"Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] ... [¶] "(4) Any...