People v. Williams

• Decision Date: 27 February 2003
• Docket Number: No. A096823.,A096823.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Maurice WILLIAMS, Defendant and Appellant.

131 Cal.Rptr.2d 546

106 Cal.App.4th 694

The PEOPLE, Plaintiff and Respondent, v. Maurice WILLIAMS, Defendant and Appellant.

No. A096823.

Court of Appeal, First District, Division 1.

February 27, 2003.

Review Denied May 14, 2003.^*

Gloria C. Cohen, First District Appellate Project, Attorneys for Appellant.

Bill Lockyer, Attorney General, David Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Martin S. Kaye, Catherine A. McBrien, Deputy Attorneys General, Attorneys for Respondent.

STEIN, Acting P.J.

Maurice Williams appeals from an October 19, 2001, order revoking his probation and committing him to state prison. The appeal presents issues concerning the application of the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) on defendants on probation on July 1, 2001, the effective date of the act.¹ We find (1) that Proposition 36 applies to defendants whose probation is revoked after the effective date of the act as a result of an arrest occurring prior to the act's effective date, and (2) that a defendant's pre-act violations of probation must be considered in determining whether the defendant is eligible for further probation.

In light of the above findings, we conclude that Proposition 36 applies to appellant, and that under Proposition 36, appellant's numerous failures on probation rendered him ineligible for further probation. We therefore affirm the order revoking probation.

We find it unnecessary to consider whether Proposition 36 effectively eliminates a trial court's discretion to revoke probation in other situations.²

Factual/Procedural History

The record of appellant's arrests as an adult dates back to February 9, 1984, and includes numerous arrests for drug-related offenses, as well as for various other crimes, some of a violent nature. In May 1999, appellant was arrested for possession of a controlled substance and for possession of controlled substance paraphernalia. He ultimately entered a plea of no contest to a charge of possession of base cocaine. In June 1999, the court suspended imposition of sentence and placed appellant on probation for a period of three years.

On August 30, 1999, appellant was arrested for being in possession of two pieces of rock cocaine. (Health & Saf.Code, § 11350.) On September 7, 1999, appellant was arrested for petty theft. (Pen. Code, § 484(a)/666.) These arrests resulted in the filing of separate petitions to revoke appellant's probation. Appellant's probation was revoked, but on January 13, 2000, it was reinstated and modified to require him to enroll in, and complete, a drug treatment program. As part of this process, appellant entered into a "Residential Drug Program Contract," under which he agreed that completion of the program would be a condition of his probation. Appellant further agreed, as part of this contract, that if he failed to complete the program, his probation would be revoked and he would be sentenced. He further agreed to waive all program and custody credits to which he otherwise would have been entitled.

Appellant did not immediately enroll in a program. On February 23, 2000, he was arrested for possession of a controlled substance, battery, crossing against the light and failing to appear on a traffic violation. By the time of a June 13, 2000, hearing, however, he had enrolled in a treatment program, and the court on that date simply ordered him to complete that program as a condition of continued probation. Appellant left the drug treatment program, and, on August 22, 2000, was arrested for possession of rock cocaine.³

By this time, appellant's Alameda County probation officer was recommending against any further probation for appellant, pointing out that he had suffered numerous convictions and that his performance on probation had been poor. The Alameda County probation officer, like the San Francisco probation officer, stated a belief that appellant was willing to enter drug treatment only as a means of avoiding incarceration, that he was not truly motivated to enter a live-in program, and that he would abscond if he were to be enrolled in a program.

The court, however, decided to give appellant one last chance at rehabilitation. On January 11, 2001, the court explained to appellant that it was considering two alternatives. The first was to impose a sentence of 16 months in state prison. The second was to impose a term of two years, but stay execution of sentence and allow appellant to continue on probation, extending the period of probation to four years, on the condition that appellant enter and complete a drug-treatment program and that he waive all but 100 days of credits for time served. Appellant requested the second alternative. He then waived his rights to the filing of a formal petition for revocation of probation and for a hearing on the truth of the allegations that he had violated his probation. The court revoked appellant's probation and sentenced him to a term of two years in state prison. It suspended execution of sentence and restored appellant to probation, but modified the terms of probation so that the term was extended to June 24, 2003. As conditions of probation, appellant waived all but 100 days of actual credits and was yet again ordered to enter and complete a residential drug treatment program.

Appellant entered the program, but left on March 11, 2001. On March 31, 2001, appellant was arrested for possession of rock cocaine, and on June 7, 2001, a petition to revoke appellant's probation was filed. Appellant submitted the matter to the court on the petition's allegations, and on September 14, 2001, a little over two months after Proposition 36 became effective, the court found that appellant had violated his probation, and it revoked his probation. One month later, the court rejected appellant's contentions that Proposition 36 mandated that he be placed on probation yet again, lifted the stay of execution of the previously imposed sentence and ordered appellant to serve two years in state prison.

Proposition 36

On November 7, 2000, California's voters approved Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which declared a purpose of diverting "from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses." (Prop.36, § 3(a).) The act seeks to achieve this purpose by adding provisions to the Penal Code, among them section 1210.1, which requires probation for persons convicted of a nonviolent drug possession offense, and encourages the trial courts to make enrollment in a drug treatment program a condition of that probation. A defendant who violates probation by committing nonviolent drug possession offenses is given two opportunities to reform. The commission of a third such offense, however, renders the defendant ineligible for probation.

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. (§ 1210.1, subds.(e)(3)(D), (e)(3)(E), and (e)(3)(F); § 3063.1, subd. (d)(3)(C); In re DeLong (2001) 93 Cal. App.4th 562, 567, 113 Cal.Rptr.2d 385.)

Applicability of Proposition 36 to Conduct or Arrest Occurring Before the July 1, 2001

Penal Code section 1210.1, subdivisions (e)(3)(D), (E) and (F) apply to a defendant "on probation at the effective date of this act for a nonviolent drug possession offense" who "violates that probation . . . by being arrested for a nonviolent drug possession offense." Appellant was on probation on July 1, 2001, the effective date of the act, and his revocation hearing and sentencing, which occurred on September 14, 2001, took place after the effective date of the act. Respondent, however, contends that appellant violated his probation when he was arrested on March 31, 2001, and that since his arrest predates the act's effective date, Proposition 36 has no application.

No case has considered the exact question presented here. A similar question, however, was considered in connection with section 1210.1, subdivision (a), which applies to defendants convicted of nonviolent drug possession offenses, as opposed to defendants who violate probation by committing nonviolent drug possession offenses. Proposition 36, by its terms, applies to "any person convicted of a nonviolent drug possession offense" (§ 1210.1, subd. (a)), and it was argued that it does not apply to a defendant whose guilt was determined prior to July 1, 2001, even if the defendant was not sentenced until after that date. The court in In re DeLong, supra, 93 Cal.App.4th 562, 113 Cal.Rptr.2d 385, rejected the argument. It noted that the term "conviction" is ambiguous; at times it has been interpreted in a narrow sense to mean a verdict or guilty plea, but at other times it has been interpreted broadly to include both the jury verdict (or guilty plea) and the judgment pronounced thereon. (Id. at p. 568, 113 Cal.Rptr.2d 385.) The court concluded that Proposition 36 employed the broader interpretation of the term, pointing out that the it was intended to have far-ranging application to nonviolent drug offenders of all classes, including probationers and parolees, and reasoning, in part, that "no rationale appears to exclude from its wide reach the limited class of defendants who, as of the effective date, had been adjudged guilty and were awaiting sentencing." (Id. at p. 569, 113 Cal.Rptr.2d 385; and see In re Scoggins (2001) 94 Cal.App.4th 650, 114 Cal.Rptr.2d 508, following DeLong.)

Respondent's position — that the date of a probationer's wrongful act or arrest determines whether Proposition 36 applies — is at least superficially inconsistent with the holding in DeLong, which, in essence, is that Proposition 36 applies to any defendant sentenced after ...