People v. Guzman

• Decision Date: 30 May 2003
• Docket Number: No. B160672.,B160672.
• Citation: 109 Cal.App.4th 341,134 Cal.Rptr.2d 727
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roberto S. GUZMAN, Defendant and Appellant.

134 Cal.Rptr.2d 727

109 Cal.App.4th 341

The PEOPLE, Plaintiff and Respondent, v. Roberto S. GUZMAN, Defendant and Appellant.

No. B160672.

Court of Appeal, Second District, Division 1.

May 30, 2003.

Cynthia A. Thomas, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Victoria B.

Wilson and Marc J. Nolan, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

SPENCER, P.J.

INTRODUCTION

The trial court placed defendant Roberto S. Guzman on drug treatment probation pursuant to Proposition 36 in two separate cases. Defendant thereafter failed to comply with any of the trial court's directives. He did not report to the drug treatment center or to his probation officer. He instead left the country, absconding from the jurisdiction of the trial court. Upon his return to the United States, defendant did not report voluntarily to his probation officer or the drug treatment center. He appeared in court involuntarily only after being arrested on a bench warrant.

At the ensuing probation violation hearing, the trial court determined that defendant had refused drug treatment and thus was not amenable to treatment pursuant to Proposition 36. The trial court revoked his Proposition 36 probation and ordered, among other things, that he spend 180 days in county jail as a condition of his newly imposed non-Proposition 36 probation. Defendant challenges his sentence, contending that the trial court lacked the authority to terminate his Proposition 36 probation. We disagree and affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

On July 2 and October 11, 2001, defendant possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a). On October 17, in Case No. PA039097, defendant pled guilty to his July 2 offense, and on October 24, in Case No. PA039614, defendant entered a guilty plea to his October 11 offense.

At the sentencing hearing held on October 25, 2001, the trial court suspended imposition of sentence as to each case and placed defendant on formal probation for three years under the terms and conditions of Proposition 36. The trial court imposed other conditions of probation as well.

In addition, the court ordered defendant to report to a community assessment service center, San Fernando Valley Mental Health Center, in Tarzana. The trial court released defendant "to go forthwith to the designated program." The trial court then continued the matter to November 8, 2001 for a Proposition 36 progress report.

After leaving the courtroom on October 25, 2001, defendant did not report to his probation officer for supervision and did not report to the drug treatment facility as ordered. He instead went to Mexico to visit his mother, who was ill.¹ Defendant remained in Mexico for five months.

As a result, defendant failed to appear in court on November 8, 2001. After confirming receipt of a report stating that defendant never reported to the drug treatment center, the trial court revoked defendant's Proposition 36 probation and issued a bench warrant. Defendant, an undocumented alien, was arrested following his return to the United States.

On June 28, 2002, defendant involuntarily appeared in court on the bench warrant. At that time, the trial court inquired if defendant was "willing to admit a violation of probation in each of these cases without a formal hearing. And if he is, whether the court should find concurrent first violations or find, because of the fact he simply absconded and did not return[] voluntarily, he's still amenable to treatment under Proposition 36."

Defense counsel represented that defendant was prepared to admit a probation violation, inasmuch as he had failed to return to court and did not go to the Tarzana treatment center as he had been ordered to do. Counsel further expressed defendant's desire to "have another chance at Prop 36." The trial court then asked counsel, "Does your client wish to offer any explanation for his actions thus far for his failing to abide by the court's order and get himself into treatment, or does he want me to accept the fact that now he wants to because he's been caught?" Defense counsel responded, "Well, he indicated to me that there was a family emergency in Mexico that kept him there for some time. Other than that, there is no further explanation."

The prosecutor asked the court to construe defendant's actions as a refusal to accept drug treatment as a condition of probation within the meaning of Penal Code section 1210.² The prosecutor emphasized that defendant "never reported to Tarzana" and "never took the first step other than being sentenced and released from custody." In addition, he failed to show up on November 8, 2001 and was picked up involuntarily.

In response, defense counsel argued that defendant's conduct could not be deemed a refusal of treatment but rather had to be assessed in accordance with the provisions governing probation violations. Counsel further argued that defendant "still has further violations with Proposition 36 before he should be terminated." Counsel emphasized that defendant could have chosen to refuse drug treatment at the October 25, 2001 sentencing hearing, but did not make that choice. Accordingly, the proper inquiry was whether defendant performed satisfactorily while on probation.

The trial court ruled as follows: "The question is one of whether one performs satisfactorily on probation as a matter of degrees. When one does absolutely nothing to comply with the conditions of probation and, in fact, absents himself from the jurisdiction of the court, I think the court—until we have further direction from on high—can conclude that by his actions, he has refused to accept treatment and that he's, therefore, no longer amenable to treatment under Proposition 36.

"Had he walked in here voluntarily and said: Your Honor, I screwed up. Here's the reason why and I'm asking the court to allow me another chance, I think that would be a significant difference in Mr. Guzman's situation. He has not done that. [11] He is before the court only because he was picked up on the bench warrants. There's no indication he would have otherwise returned to court voluntarily. And therefore, the court is going to find that:

"Based on the stipulation, that he's in violation of probation; that probation should be revoked. [¶] I'll find that he is no longer amenable to treatment by virtue of his absconding from the jurisdiction of the court and from the program and, in fact, never started the program, [¶] And I will, therefore, order that Proposition 36 treatment program be terminated, and each of his cases will be returned to the home court."

At the sentencing hearing held on July 30, 2002, as to each matter, the trial court sentenced defendant anew. The court suspended proceedings, placed defendant on three years of formal probation and imposed numerous probationary terms and conditions, one of which was that he serve the first 180 days in county jail. This appeal followed.

CONTENTION

Defendant contends the trial court erred in terminating his drug treatment probation under Proposition 36. We disagree.

DISCUSSION

Overview of Proposition 36

California voters passed the Substance Abuse and Crime Prevention Act of 2000, commonly referred to as Proposition 36, on November 7, 2000. This initiative, which became effective on July 1, 2001 (Prop.36, § 8), "dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses." (People v. Letteer (2002) 103 Cal.App.4th 1308, 1322, fn. 8, 127 Cal.Rptr.2d 723.)

In enacting Proposition 36, the California electorate declared its purpose and intent: "(a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration—and reincarceration—of nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health, by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (Prop.36, § 3.)

"By its terms, Proposition 36 requires the court to grant probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation." (People v. Davis (2003) 104 Cal.App.4th 1443, 1446, 129 Cal. Rptr.2d 48.) "Only defendants who fall into a particular excluded category of persons may be incarcerated." (People v. Murillo (2002) 102 Cal.App.4th 1414, 1418, 126 Cal.Rptr.2d 358, Pen.Code, § 1210.1, subd. (b).) "Proposition 36 was intended to have a far-ranging application to all classes of nonviolent drug offenders, including not only first time offenders, but also defendants on probation or parole as of its effective date." (People v. Williams (2003) 106 Cal.App.4th 694, 698, 131 Cal. Rptr.2d 546.)

"The scheme offers these offenders the opportunity to participate in structured outpatient drug treatment programs in lieu of incarceration. The drug treatment programs are monitored and regulated by statute, and the program providers must report directly to the probation department. Within seven days of the court's order, the probation department must notify the drug program provider. (§ 1210.1, subd. (c).) Within 30 days of the notice, the drug program provider must prepare a treatment plan for the defendant. (Ibid.) Drug treatment services may not exceed 12 months or no more than 18 months for follow-up care. (§ 1210.1, subd.(c)(3).) ...