People v. Haddad

• Decision Date: 07 July 2009
• Docket Number: No. B212880.,B212880.
• Citation: 176 Cal.App.4th 270,97 Cal. Rptr. 3d 477
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. OUSAMA SAADEH HADDAD, Defendant and Appellant.

176 Cal.App.4th 270

97 Cal. Rptr. 3d 477

THE PEOPLE, Plaintiff and Respondent, v. OUSAMA SAADEH HADDAD, Defendant and Appellant.

No. B212880.

Court of Appeals of California, Second District, Division Five.

July 7, 2009.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

TURNER, P. J.

Defendant, Ousama Saadeh Haddad, pled guilty to methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)); marijuana possession (Health & Saf. Code, § 11357, subd. (b)); and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Defendant appeals from a subsequent probation revocation order. Defendant argues he was found in violation of probation based upon a drug-related offense; therefore, he was improperly denied the opportunity to participate in probation pursuant to Penal Code¹ section 1210.1. This is commonly referred to as Proposition 36 probation. We affirm.

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781]; People v. Elliot (2005) 37 Cal.4th 453, 466 [35 Cal.Rptr.3d 759, 122 P.3d 968]; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On July 29, 2008, defendant was stopped while riding a bicycle. Defendant was agitated and fidgety, had rapid speech, and his pupils were constricted. Defendant admitted he had used methamphetamine that morning. After defendant was arrested, two baggies containing 1 gram of methamphetamine and 0.44 grams of marijuana were found in his pocket. On July 31, 2008, defendant pled guilty as set forth above. On August 14, 2008, the imposition of sentence was suspended. Defendant was placed on three years' probation pursuant to section 1210.1, subdivision (a).² Defendant was ordered to not use or possess any narcotics, dangerous or restricted drugs, or related paraphernalia without a prescription; participate in a drug treatment program; submit to antinarcotic testing and search and seizure; and attend three Narcotics Anonymous meetings per week.

On November 17, 2008, defendant was found in possession of a device which attaches to an individual's body with a plastic tube that connects to a bottle filled with "clean" urine. (See People v. Budwiser (2006) 140 Cal.App.4th 105, 107 .) The device is used to provide urine that does not contain evidence of narcotics use in order to falsely reflect a negative test result. On December 11, 2008, a probation revocation hearing was held. The prosecutor argued that defendant's possession of the device constituted the offense of producing false evidence to a court, a separate violation which was not drug related within the meaning of section 1210.1 subdivision (b)(2).³ Defendant admitted that he was wearing the alternate urine device when he appeared for court-ordered antinarcotic testing. However, defense counsel argued that defendant's acts were drug related, requiring the reinstatement of the initial grant of Proposition 36 probation. The trial court, relying on the case of People v. Moniz (2006) 140 Cal.App.4th 86, 94 , ruled the use of the alternate urine device was not a drug-related violation of probation. In Moniz, our colleagues in the Court of Appeal for the Third Appellate District held that the defendant was ineligible for a grant of a Proposition 36 probation because his conviction for concealing heroin was not related to his use of drugs within the meaning of section 1210.1, subdivision (b)(2).

In finding defendant was ineligible for Proposition 36 probation, the trial court ruled: "What has happened here is that [defendant] attempted to avoid detection by utilizing a fairly sophisticated [device] to perpetrate a fraud on the program and perpetrate a fraud on the court. Because an to [sic] individual can attempt to avoid detection—let's say the individual has used but is scheduled for a drug test and simply doesn't show up. But knowing that the failure to show up is going to be a violation, knowing that they [sic] judge is going to treat that as a dirty test. Not only was [defendant] attempting to avoid detection that he had been using, which I assume that's why he did all of this, but he tried to pass that he was testing cleanly because he's providing somebody else's urine. So it's a double fraud. One, he's attempting to avoid detection. One, he's trying to pass off that he's testing cleanly. When he does that and had his scheme worked, he would have gotten a clean test. So that deprives this court the ability to properly manage an individual under [Proposition] 36. So that he is obstructing the very core of the [Proposition] 36 program; that an individual is allowed to relapse. But then that gives the court the information that this court would need to come up with an appropriate treatment plan and increase the treatment level, put him in a residential program. But when the individual is going to such lengths that make it appear to the court that he is not using drugs, then that defeats the entire purpose. . . . [¶] Number 2, the integrity of the [Proposition] 36 program, the integrity of the individual treatment provider—as we know ARC will not take him back—and is greatly compromised by an individual who having done the [Proposition] 36 program before, knowing how the program operates that he goes to these lengths to not avoid not only detection [sic] but to give the impression that he's abiding by the rules and testing cleanly, and the program is working for him when in fact it has not. [¶] So by analogy this case is very similar to the Moniz case in the fact that this is an attempt by an individual to not—not simply avoid a violation, but to give the impression that he is clean, because it goes much further than just avoiding a violation. So for all of the foregoing reasons, I am going to find that the use of a whizanator, and of course I may be incorrect, is a nondrug related violation of probation. And as such [Proposition] 36 is hereby terminated."

Defendant argues that the trial court improperly terminated his Proposition 36 probation because his use of the alternate urine device is a drug-related violation. We disagree. Section 1210, subdivision (d) states: "The term `misdemeanor not related to the use of drugs' means a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in (1)." Section 1210.1, subdivision (f)(2) provides: "If a defendant receives probation under subdivision (a), and violates that probation either by committing an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section."

Our colleagues in the Court of Appeal for the Third Appellate District held: "[T]he purpose of Proposition 36 is `[t]o divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses.' [Citations.]" (People v. Esparza (2003) 107 Cal.App.4th 691, 695-696 ; see People v. Muldrow (2006) 144 Cal.App.4th 1038, 1042 .) In the decision of In re Taylor (2003) 105 Cal.App.4th 1394, 1398 , our colleagues in Division Eight of this appellate district held: "Proposition 36 does not . . . extend the same grace [the ability to be returned to probation for violations of drug-related conditions of probation] 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. [Citation.]" (Original italics, fn. omitted; see People v. Enriquez (2008) 160 Cal.App.4th 230, 240 .)

In People v. Canty (2004) 32 Cal.4th 1266, 1280-1285 [14 Cal.Rptr.3d 1, 90 P.3d 1168], our Supreme Court considered whether driving under the influence of drugs was a "misdemeanor not related to the use of drugs" within the meaning of section 1210, subdivision (d). Our Supreme Court discussed the voters' intent reflected in the official ballot pamphlet: "[T]he proponents of Proposition 36 stated that the measure was `strictly limited' and `only affects simple drug possession. No other criminal laws are changed.' (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26, italics added.)" (Id. (32 Cal.4th at p. 1281, fn. omitted.) Our Supreme Court concluded, "[S]ection 1210, subdivision (d)(2) may not fairly be construed to include the offense of misdemeanor driving while under the influence of drugs as an `activity similar' to the offenses described in section 1210, subdivision (d)(1)." (Id. at p. 1285.)

Likewise in People v. Moniz, supra, 140 Cal.App.4th at page 94, the court relied on the analysis in People v. Canty, supra, 32 Cal.4th at pages 1280-1285, and held that the offense of concealing evidence was a misdemeanor not related to the use of drugs. In Moniz the Court of Appeal held: "Our decision is bolstered by other recent cases finding that a variety of misdemeanors render a defendant ineligible for Proposition 36 treatment. In [People v.] Wheeler [(2005)] 127 Cal.App.4th [873,] 881 , the court found forgery of a medical prescription, even when intended to obtain drugs for personal use, does not come within the term `...