People v. Tanner

• Citation: 28 Cal.Rptr.3d 201,129 Cal.App.4th 223
• Decision Date: 10 May 2005
• Docket Number: No. D043571.,D043571.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lorenzo Lee TANNER, Defendant and Appellant.

28 Cal.Rptr.3d 201

129 Cal.App.4th 223

The PEOPLE, Plaintiff and Respondent, v. Lorenzo Lee TANNER, Defendant and Appellant.

No. D043571.

Court of Appeal, Fourth District, Division 1.

May 10, 2005.

Gary Roberts, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Maxine P. Cutler and Kristin Anton, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, J.

This is an appeal from a judgment committing Lorenzo Lee Tanner to a five-year prison term after he admitted a third and fourth violation of drug-related conditions of probation and the court terminated his probation under Proposition 36, the Substance Abuse Crime Prevention Act of 2000 (the Act). (The Act is codified at Penal Code sections 1210, 1210.1 and 3063 (all statutory references are to this code unless otherwise specified) and division 10.8 (commencing with § 11999.4) of the Health and Safety Code.)

Tanner raises numerous arguments in support of his contention the trial court erred in prematurely revoking his Proposition 36 probation and sentencing him to prison. He essentially asserts the provisions of the Act required the state to formally make three separate noticed motions before the trial court could properly revoke his probation based solely upon drug-related violations of probation conditions imposed under the Act, and that without such due process and proper revocation, his failure to object to the court's sentence does not result in a waiver because the sentence was unauthorized. Tanner finally contends that if the issues regarding his sentence and revocation of probation under the Act are determined to be waived, he was denied the effective assistance of counsel.

As we explain below, we agree with Tanner that the Act requires the state to make three noticed motions before a trial court can properly revoke probation under the Act based solely upon drug-related violations of probation conditions, that the failure of the state to do so here rendered the revocation of Tanner's probation under the Act improper, and that based on the particular facts of this case, Tanner has not waived his right to challenge the improper revocation of his Proposition 36 probation and subsequent sentence. We, therefore, reverse and remand with directions to the trial court to reinstate Tanner's probation under the Act, and to permit the state to reopen the second properly noticed probation revocation hearing for a determination of Tanner's amenability to drug treatment under the Act.

FACTUAL AND PROCEDURAL BACKGROUND

On July 17, 2003, Tanner, who was on active state parole, pled guilty to possessing a usable quantity of methamphetamine (meth) in violation of Health and Safety Code section 11377, subdivision (a), and admitted four prison priors (§§ 667.5, subd. (b)) in exchange for the case being handled under the Act. Tanner executed a section 1210 judgment addendum, agreeing to numerous drug-related and nondrug-related conditions of probation, including, among other things, "participate in and successfully complete a drug treatment program," not use or possess any controlled substance, and "submit to any test for the use of controlled substance. . . ." Tanner was released on his own recognizance in this case, pending a review hearing set for August 21, 2003.

For that hearing, the probation officer filed with the court a section 1210 review/violation report indicating Tanner was "currently in compliance with probation, having been admitted at the Episcopal Community Services (ECS) South Bay on 07/21/2003. However, the provider reported that the defendant was absent on 07/29/2003, 07/30/2003, 7/31/2003 and 8/12/2003." The report recommended probation continue on the same terms and conditions as previously ordered even though Tanner had tested positive for meth on 07/13/2003, and was in "marginal compliance in drug treatment at the ECS program."

At the hearing, a deputy who had observed Tanner and had given him several field sobriety tests (FST's) and the opportunity to provide a urine sample over the period of an hour and a half that afternoon, represented to the court that Tanner was unable to produce any urine samples and was believed to be "under the influence." Based on the positive FST results and the failure to test, the court summarily revoked Tanner's probation and set the matter for a review hearing.

On August 28, 2003, Tanner appeared at the review hearing, waived his right to an evidentiary hearing, admitted he had violated his probation on August 18, 2003, by being discharged from his treatment program and again on August 21, 2003, by testing positive for drugs at court, and requested he be reinstated on probation under the Act. After the court accepted Tanner's admissions to his first and second violations of probation, it formally revoked his probation and then reinstated Tanner on probation on the same terms and conditions, ordering him to report to the probation department. When the court then asked, "And understand you're on your last chance so pay attention. All right?," Tanner responded, "Yeah." A review hearing was set for October 15, 2003.

The four-page section 1210 review/violation report filed by the probation officer for the next review hearing recapped that Tanner had suffered two prior drug related violations on August 28, 2003, and indicated he had been terminated from Community Connections Resource Center (CCRC), a second drug treatment program, on September 29, 2003, for excessive absences (10) and the failure to drug test on September 15, 2003; he was in $100 in arrears in treatment fees; and he had tested positive for meth at the probation department on September 29, 2003. Based on the new violations of probation, the report recommended that Tanner be found unamenable to section 1210 because he had exhausted his chances under the Act and that the matter be set for sentencing.

In addition, the report noted Tanner had failed to test at CCRC on July 24, 2003, and had tested positive for meth there on September 2, 2003, but that no violations were being recommended on those breaches of his probation conditions. The report also advised the court that Tanner had reported to the probation office two times in early October requesting a section 1210 referral to another drug treatment program and was told no action could be taken until after the October 15, 2003 review hearing.

At the hearing on the matter, which alleged two new violations of his probation, Tanner waived his right to an evidentiary hearing and admitted the violations of being discharged from his treatment program and of testing positive for drugs on September 29, 2003. Although Tanner was represented by counsel at the hearing, Tanner then explained he had paper work with him to show he had been in detention on his parole from September 21 to 28, 2003, which counted for eight of the absences at CCRC. He also related that after he had been discharged from CCRC he took it upon himself to get some referrals to show he could take the initiative to get off of drugs. He had a new daughter so he had gone to juvenile court and signed forms to declare his parental rights as a father and had enrolled in the SARMS (substance abuse recovery management system) program through the dependency court. Tanner wanted an opportunity to be a father, clarifying that he admitted he did the drugs, but after the 29th of September 2003, he had "stopped."

The court told Tanner that if it was just a matter of being terminated because he had been in custody it would not find a violation, but that there was the positive test which he admitted. The court explained that the third and fourth drug related violations had been found and he "only get[s] three. . . . [And in any event] there's three drug related violations. . . ." The court advised Tanner it was revoking probation under section 1210, but continuing the sentencing date to allow him an opportunity to cooperate with probation to get his sentencing report done and show the court what he had done and how he had stayed clean. The court told Tanner it was making no promises to grant probation rather than state prison because he had admitted four prison priors, but it wanted to give him a chance to show how he had turned his life around.

In response to Tanner's inquiry as to whether probation would give him a referral for a treatment program, the court clarified that probation had been revoked, the probation department was preparing a sentencing report and Tanner needed to use his own initiative to get into treatment. With the prosecutor's agreement, Tanner waived time for "due course sentencing" to give him more time "to establish [his] foundation" and show the court what he had done.

In addition to the court minutes of the October 15, 2003 hearing showing Tanner had admitted two new drug related violations of the conditions of his section 1210 probation and such probation terminated with the matter set for sentencing for December 4, 2003, it also stated Tanner was found to be unamenable to section 1210 treatment.

At the time of sentencing, the court considered a 14-page probation revocation report which detailed Tanner's criminal history, the various violations of his section 1210 probation, and his subsequent attempts at drug treatment since his section 1210 probation had been revoked. The report further revealed that when Tanner was interviewed by probation, he admitted he had used meth seven days before the interview even though he was then in out-patient treatment and involved with child protective services to try to regain custody of his daughter, who had tested positive for meth upon birth. Attached to the probation report were a treatment plan dated October 27, 2003, from McAlister Institute, a recovery services plan from the San Diego County Dependency Cou...