People v. Garcia

Decision Date27 November 2002
Docket NumberNo. F039327.,F039327.
Citation103 Cal.App.4th 1228,127 Cal.Rptr.2d 410
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Atanacio G. GARCIA, Defendant and Appellant.

K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HARRIS, J.

INTRODUCTION

Appellant Atanacio G. Garcia pleaded guilty to felony possession of methamphetamine and misdemeanor driving under the influence of methamphetamine. He requested the trial court place him on probation and order treatment pursuant to the provisions of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen.Code,1 § 1210 et seq.). The court denied appellant's request having determined he was not eligible for probation and treatment under Proposition 36, because his conviction for driving under the influence of methamphetamine was a "misdemeanor not related to the use of drugs" within the meaning of section 1210.1, subdivision (b)(2). On appeal, appellant asserts his misdemeanor conviction involved the "simple possession or use of drugs" and did not render him ineligible under Proposition 36. We will affirm.

FACTS

On August 23, 2001, Kings County Sheriffs Deputy Brandt was on patrol when he observed a vehicle swerve across a traffic lane and cross over the center divider line.2 When Deputy Brandt conducted the traffic stop, the vehicle stopped in the middle of the road. Deputy Brandt approached the driver's side window and smelled the odor of an alcoholic beverage from the vehicle. Appellant Atanacio Garcia was the driver, and Mario Garcia was sitting in the front passenger seat. Deputy Brandt observed an open bottle on the floorboard of the front passenger seat between Mario Garcia's legs. Deputy Brandt also noticed appellant was rolling a ball of aluminum foil between his thumb and forefinger.

Deputy Brandt determined appellant's driver's license had been suspended, and questioned him about his consumption of alcohol. Appellant denied he had been drinking. However, appellant displayed obvious signs of being under the influence when he stepped out of the car. Appellant denied he had ever been arrested, but later admitted he had previously been arrested for being under the influence of a controlled substance. Appellant also admitted he used crank two days earlier.

Deputy Brandt conducted field sobriety tests and determined appellant was under the influence of a controlled substance, specifically a stimulant. Appellant consented to a search of the vehicle, which revealed a 12-pack of beer, an open beer bottle, and a cigarette package containing a small plastic bindle. The bindle contained a substance which appeared to be marijuana. Deputy Brandt also found a white rock, which consisted of 6.0 grams of methamphetamine.

Appellant was arrested, transported to the Kings County Sheriffs Department, and advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant stated he had last used methamphetamine two or three days earlier, but the methamphetamine in the vehicle did not belong to him. Appellant submitted a urine sample and it was later determined appellant was under the influence of methamphetamine.

Appellant was charged with multiple narcotics offenses, but pleaded guilty to felony possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)), and misdemeanor driving under the influence of a controlled substance, methamphetamine (Veh.Code, § 23152, subd. (a)), with two prior convictions for driving under the influence. Appellant requested the court to place him on probation and order treatment pursuant to Proposition 36. The court referred the matter to the probation department for a determination of appellant's eligibility. The prosecutor stated his intent to oppose appellant's request for probation and treatment under Proposition 36.

The Probation Report

According to the probation report, appellant (born 1975) stated he used approximately $30 worth of methamphetamine every other day. He occasionally smoked marijuana and drank alcohol on the weekends. Appellant stated he had a drug problem and was willing to participate in a treatment program. Appellant was employed as an installer with a monthly income of $1,200.

Appellant did not have a juvenile or adult felony record and never served time in state prison. However, appellant had an extensive record of driving offenses. In 1997, he was convicted of driving with a blood-alcohol level of .08 or higher (Veh. Code, § 23152, subd. (b)), placed on 36 months of probation, and also served time in jail. In March 2000, he was convicted of driving on a suspended license (Veh.Code, § 14601.1), and again placed on probation. In October 2000, he was convicted of driving with a blood-alcohol level of .08 or higher, placed on probation for 18 months, and served time in jail.

The probation report stated there were no statutory provisions which prohibited a grant of probation in this case. However, appellant was required to serve a minimum of 120 days in custody for violating Vehicle Code section 23152, subdivision (a), with two prior convictions. In addition, appellant posed a danger to society if he was not imprisoned for the instant offenses because he continued to drive while under the influence of controlled substances. He was on probation when the instant offenses were committed, and his prior performance was unsatisfactory.

"After reviewing the present case and [appellant's] prior criminal record, [appellant] does not appear to be suitable for probation in the Substance Abuse and Crime Prevention Program, Prop. 36. [Appellant] has been convicted of a crime other than a non-violent drug offense, specifically 23152(a) VC, and therefore is not eligible for a grant of probation under Prop. 36, pursuant to Section 1210.1(b)(2) of the California Penal Code. Furthermore, it is the opinion of this officer that [appellant] is not eligible under 1210.1 PC due to the fact the driving under the influence of alcohol and/or a drug involves the threat of physical injury to another person, and therefore [appellant] poses a serious danger to society. Therefore, it is respectfully recommended that probation be denied."

The probation report recommended imposition of the midterm of two years in state prison for possession, with a concurrent one-year term for driving under the influence.

Sentencing Hearing

At the sentencing hearing, the prosecutor argued appellant was ineligible for treatment under Proposition 36 for two reasons. First, driving under the influence was a misdemeanor not related to drug use because it involved the use of a motor vehicle. Second, driving under the influence involved a threat of violence or physical injury to other people.

The court reviewed the probation report and agreed appellant was not eligible for treatment. The court noted that "[superficially, it would seem that [driving under the influence] is a crime involving the use of drugs, because that's the way you get under the influence." However, the court found the offense was a misdemeanor not related to the simple use of drugs, which rendered appellant ineligible for treatment.

"The sole question then is whether or not the [word] `simple' applies to or defines or limits or modifies the phrase, quote, `possession or use,' as I believe it does. In that case I would find that Vehicle Code 23152(a) is a disqualifying crime as it is not simple use, but it is use coupled with another distinct activity or circumstance, i.e, driving a car. The word `simple' means `plain, unmixed or free or secondary complications.' I believe that the intent of the drafters was to exclude an offense such as 23152(a) as it was not a crime involving the simple use of drugs.

"I also note in this regard that 23152(a) is not, as I mentioned before, not a nonviolent drug possession offense as defined, but that being under the influence of drugs under 11550 is a nonviolent drug diversion offense. My analysis is that if the drafters had wished to include 23152(a), either as a nonviolent drug possession offense or as a qualifying misdemeanor, they could have easily done so.

"If I were to interpret the statute as it's presently written to include 23152(a) by use of drugs as an eligible offense, we would have the anomaly of not having a person eligible for Prop 36 treatment if they had consumed all the drugs they had and they were driving under the influence. They would be—if the only violation, in other words, was it 23152(a), he would be punished under Vehicle Code statutes.

"If he did not consume all the drugs, but enough to become under the influence and drove a vehicle and was stopped, as was in this particular instance, being under the influence of drugs while driving and possessing drugs, [appellant's] interpretation would result in his being qualified for Prop 36 treatment, which I don't think makes any sense, because you have the exacerbated person in Prop 36 treatment and the one who merely drove under the influence who's not eligible for Prop 36.

"In any event, my conclusion is that the Vehicle Code 23152(a) conviction, no matter how it was performed, is a disqualifying offense since [appellant] was convicted in the same proceeding of this, so it makes his treatment for the 11377(a) under Prop 36 not an option in this case."

Defense counsel asserted that even if appellant was ineligible for treatment, he should still receive probation for the possession conviction on condition of serving local time and attending a mandatory treatment program, with the possibility of being sent to prison if he failed to comply with the probationary terms. The prosecutor repli...

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