Opinion
A121428.
2-18-2009
THE PEOPLE, Plaintiff and Respondent, v. TYRONE JAMAR GRIFFIETH, Defendant and Appellant.
Not to be Published in Official Reports
The trial court terminated the Proposition 36 probation of appellant Tyron Jamar Griffieth. (Pen. Code, §§ 1210-1210.1.) He later admitted violating a condition of that probation. His probation was revoked and reinstated in a modified form that was no longer subject to Proposition 36. Griffieth appeals, contending inter alia that the trial court erred when it terminated his Proposition 36 probation. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
If we calculate the appeal period from the February 2008 date of the new sentence imposed after the finding of a violation of probation, then Griffieth filed a timely April 2008 notice of appeal from that judgment. This is an appealable order. (§ 1237.) If the January 2008 termination of Proposition 36 probation was independently appealable as an order after judgment, then the April notice of appeal was not timely. As the parties have not briefed this issue and we have found no case law on it, we will address the merits of the issues on appeal, assuming that we have jurisdiction over the appeal before us.
I. FACTS
In October 2006, appellant Tyrone Jamar Griffieth was homeless. He used alcohol and methamphetamine daily, and had done so for four years. He was on probation, having been convicted of a 2002 misdemeanor possession of a controlled substance. (See Health & Saf. Code, § 11377, subd. (a); § 17.)
On October 2, 2006, Griffieth was found in possession of two drugs for which he had no prescription. He was charged by felony complaint with possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) The prosecution made a preliminary finding that Griffieth was eligible for screening to determine if he met the standards for probation pursuant to Proposition 36. (§§ 1210-1210.1.) Griffieth pled not guilty to the charge. He was released on his own recognizance, agreeing to abstain from the use of alcohol and illicit drugs, submit to substance abuse testing, and attend regular AA or NA meetings.
In November 2006, Griffieth failed to appear at the next two hearings. His own recognizance release was revoked and a bench warrant was issued for his arrest. The warrant was served on December 4, 2006, when Griffieth was returned to court. Bail was set at $10,000. Eight days later, he pled guilty to the possession charge. The trial court found Griffieth guilty of felony possession of a controlled substance, suspended imposition of sentence, and placed him on three years probation pursuant to the terms of Proposition 36.
Although a later probation report states that the probation in his earlier misdemeanor matter was also converted to Proposition 36 probation, in fact, the underlying misdemeanor case was dismissed in December 2006. In January 2008, the prosecution asked the trial court to take judicial notice of its records in the misdemeanor case, but the record on appeal does not indicate if the trial court made a formal ruling on this request.
Griffieth agreed to the terms of that grant of probation. One condition required him to appear for a Proposition 36 probation orientation at the probation department. He did not appear at that orientation, nor did he appear at the next two court hearings. In January 2007, another bench warrant issued. The trial court revoked his probation.
It appears that, in March 2007, Griffieth was arrested on new drug charges but the case was not prosecuted. (See Health & Saf. Code, §§ 11364, subd. (a), 11377, subd. (a).)
In April 2007, Griffieth was arrested on the warrant and again brought to court. He admitted that he failed to appear at the orientation and failed to maintain contact with the probation department. The trial court found that he violated a non-drug related condition of probation. Griffieth was released on probation and again required to attend an orientation. He attended that orientation, but failed to attend the next court hearing, and found himself the subject of a third arrest warrant. He was arrested on the third warrant in December 2007. Griffieths probation was revoked and he was remanded to custody without bail.
In January 2008, the prosecution sought to terminate Griffieth from Proposition 36 probation, arguing that his conduct constituted a refusal of drug treatment rendering him ineligible under the statute. (§ 1210.1, subd. (b)(4).) On January 18, 2008, after a hearing on the prosecutions motion, the trial court terminated Griffieths Proposition 36 probation. It referred him for a drug court assessment. Again, he was remanded into custody without bail. In February 2008, a commissioner found that Griffieth was not amenable to drug court, but suited for residential drug treatment and outpatient follow-up through traditional probation.
In its motion, the prosecution noted that in May 2007, it was determined that Griffieth had a full syringe of methamphetamine in his possession at the time of his April 2007 arrest. The prosecution decided not to file a new drug charge against him, but to base a drug violation of probation on Griffieths possession of methamphetamine. If he was found amenable to treatment, the prosecution intended to formally charge this drug violation of probation.
No reporters transcript of the February 1, 2008 hearing before the commissioner was provided to us as part of the record on appeal.
Four days later, Griffieths case was referred for residential drug treatment screening. The probation report stated that Griffieth expressed an interest in entering a residential drug treatment program. It recommended that probation be reinstated, and that one condition of probation require that he enter such a program.
No February 5, 2008 reporters transcript is included in the record on appeal.
The probation report also noted that the allegation that Griffieth had violated the terms of his probation had not yet been addressed. On February 26, 2008, Griffieth admitted that he had violated his Proposition 36 probation by failing to appear in April 2007. The trial court formally found that he had violated the terms of his Proposition 36 probation. His probation was revoked and reinstated on a non-Proposition 36 basis, subject to the condition that he remain in custody until a placement in a residential treatment program could be arranged. Griffieth agreed to these terms of probation. In April 2008, he entered a six-month residential treatment program.
Griffieths written admission references the dismissed misdemeanor case, as well.
It is unclear whether the trial court revoked Griffieths Proposition 36 probation or another standard form of probation at this hearing. The basis of the violation was grounded in Proposition 36, but that form of probation had been terminated a month earlier. As we find that the trial courts termination of Proposition 36 probation was proper, we need not resolve this question.
II. TERMINATION OF PROPOSITION 36 PROBATION
Inter alia, Griffieth argues that the trial court erred in January 2008 when it terminated his Proposition 36 probation. He disputes that courts finding that he was not amenable to drug treatment. The prosecution sought to terminate Griffieths Proposition 36 probation on the ground that he had refused drug treatment. (§ 1210.1, subd. (b)(4).) The trial court terminated his Proposition 36 probation, stating that Griffieth was not amenable to Proposition 36 treatment.
Proposition 36 was enacted to provide probation with drug treatment for certain nonviolent offenders charged with drug possession and use offenses. (Prop. 36, § 3; People v. Guzman (2003) 109 Cal.App.4th 341, 346 (Guzman ).) Defendants eligible for Proposition 36 probation include those who do not refuse drug treatment as a condition of probation. (§ 1210.1, subd. (b)(4); People v. Esparza (2003) 107 Cal.App.4th 691, 699 [Proposition 36 probation is mandatory for eligible defendants].) In our case, the trial court, the prosecution and defense counsel all believed that Griffieth was eligible for Proposition 36 probation when it was initially ordered in December 2006.
The eligibility requirements of Proposition 36 continue to apply, even beyond the initial grant of probation. (Guzman, supra, 109 Cal.App.4th at p. 350.) "To be sure, the trial court would be justified in terminating the probation of a defendant who commences drug treatment and who later advises the court he or she no longer wishes to continue in treatment and would rather serve time. It follows necessarily, then, that the trial court can terminate the probation of a defendant who, by his conduct following the grant of probation refuses to undergo drug treatment." (Ibid.)
If the trial court determines that its initial determination of eligibility was in error, it may terminate the defendant from Proposition 36 probation. (See Guzman, supra, 109 Cal.App.4th at pp. 349-350.) If the defendants conduct demonstrates a complete and unequivocal refusal to participate in Proposition 36 drug treatment, he or she may be deemed—by that conduct—to have completely and unequivocally refused drug treatment within the meaning of subdivision (b)(4) of section 1210.1. (Id. at p. 350; see People v. Johnson (2003) 114 Cal.App.4th 284, 300; see also People v. Castagne (2008) 166 Cal.App.4th 727, 733-736.)
Courts distinguish termination of probation from revocation of probation in the context of Proposition 36. (See, e.g., Guzman, supra, 109 Cal.App.4th at p. 350.) A defendant is terminated from Proposition 36 probation if he or she is determined to be ineligible for this form of probation. (See § 1210.1, subd. (b).) A defendants Proposition 36 probation is revoked if he or she commences drug treatment pursuant to that statute, falters in that treatment, and thus violates a condition of that probation. (Guzman, supra, 109 Cal.App.4th at p. 350; see § 1210.1, subd. (f).)
Griffieth finds Castagne particularly persuasive, arguing that the facts in this case and his own were similar, and that Castagne precluded his trial court from finding that he refused drug treatment. We disagree with Griffieths conclusion about the meaning of that decision. In Castagne, the trial court had not found the defendant ineligible for Proposition 36 probation on this basis of subdivision (b)(4) of section 1210.1. (People v. Castagne, supra, 166 Cal.App.4th at p. 733.) It refused to imply such a finding, noting that the evidence before the trial court on this issue was conflicting. Instead, it remanded the matter to the trial court for a determination of whether the defendant was ineligible for Proposition 36 probation on this basis. (Id. at pp. 733-737.) Contrary to the view espoused by Griffieth, the Castagne court did not determine that the facts in that case either compelled or precluded this finding. In fact, its remand to the trial court for hearing on that issue implies that the trial court could have concluded that such a finding could be made on the conflicting evidence of refusal of drug treatment.
More than a year after he was granted Proposition 36 probation, it had become apparent that Griffieth did not, in fact, meet its eligibility requirements. In that time, he had been involuntarily returned to court twice on bench warrants and had managed to do nothing more toward the satisfaction of the terms of his probation than to attend a single orientation meeting. Despite defense counsels statement that his client wished to obtain drug treatment, Griffieths conduct demonstrated a refusal of drug treatment. Thus, we conclude that in January 2008, the trial court properly terminated Griffieths Proposition 36 probation for lack of eligibility.
We note that typically, drug treatment services under Proposition 36 may not be offered for more than one year. (§ 1210.1, subd. (d)(3); People v. Esparza, supra, 107 Cal.App.4th at p. 696.)
Griffieth argues that the trial court erred in concluding that he was not amenable to drug treatment. Although the trial court used this language, it is clear to us from the context that the trial court, in fact, found Griffieth ineligible for Proposition 36 drug treatment probation. (See Guzman, supra, 109 Cal.App.4th at p. 350.)
In light of our finding upholding the termination of Proposition 36 probation, we need not address Griffieths alternate argument that the trial court erred in revoking his Proposition 36 probation.
The judgment—including the termination of Griffieths Proposition 36 probation—is affirmed.
We concur:
Sepulveda, J.
Rivera, J.