Opinion
F060852 Super. Ct. No. SCR008470 Super. Ct. No. SCR009498
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. JERRY DUANE WOOD, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J. and Kane, J.
APPEAL from a judgment of the Superior Court of Madera County. Charles A. Wieland, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jerry Wood stands convicted in two separate cases of the following offenses: felony selling, transporting, or importing marijuana (Health & Saf. Code, § 11360, subd. (a)) and felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)). Wood was placed on probation pursuant to Penal Code section 1210 et seq., the Substance Abuse and Crime Prevention Act of 2000, commonly known as Proposition 36. His Proposition 36 probation was revoked after the court found he violated his probation by failing to report to the probation officer, being away from his reported residence for more than 24 hours without prior notification to the probation officer, and changing his residence address without advance notification to the probation officer. The court placed Wood on five years' probation pursuant to section 1203 and ordered him to serve 180 days in the county jail.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, Wood contends the court erred in revoking his Proposition 36 probation. We will affirm.
PROCEDURAL BACKGROUND
Because the facts of the offenses of which Wood stands convicted are not relevant to the issues raised on appeal, we will forgo recitation of those facts.
On October 27, 2009, in Madera County Superior Court, Sierra Division case No. SCR008470 (case No. 1), Wood pled no contest to selling, transporting or importing marijuana and admitted he had two prior convictions pursuant to section 667.5, subdivision (b). That same day, in Madera County Superior Court, Sierra Division case No. SCR009498, Wood pled no contest to possession of heroin and admitted he had two prior convictions pursuant to section 667.5, subdivision (b). In return, in both cases Wood was admitted to Proposition 36 probation on December 1, 2009.
On May 27, 2010, the Madera County Probation Department filed petitions to revoke Wood's probation in both cases, alleging that he failed to satisfy the following terms and conditions of his probation: (1) report monthly or as directed to the probation officer; (2) not be away from reported residence more than 24 hours without prior notification to the probation officer; and (3) not change residence address without advance notification to the probation officer. The petitions alleged that Wood failed to report to probation for the months of December 2009 to March 2010, failed to update his residence information with his current whereabouts being unknown, was away from his reported residence for approximately two weeks, and no longer lived at his reported residence. The petitions requested a finding that the three violations are non-drug-related and that probation be revoked.
A contested hearing was held on July 13, 2010, at which Wood appeared in propria persona. Madera County Probation Department employee Abinadi Cortes, who is assigned to the Proposition 36 "case load," testified that as part of his case load, he was assigned to monitor Wood. As part of Wood's terms of probation, he was required to report in person to Cortes monthly. Wood did not comply with this term, as he failed to report for the months of January, February and March. Wood did not have a scheduled date to appear in January. When Cortes did not hear from Wood in January, he attempted to contact him on January 22, 2010 at his reported residence by calling Wood's telephone number there. Cortes spoke with Wood's grandmother, who said she had not seen Wood in over two weeks and he was no longer residing there. Wood's grandmother believed Wood was working in Bakersfield and thought he might be staying at his father's residence; she gave Cortes the telephone number. Cortes called Wood's father, who told him Wood had been staying there, but he was not there at the time. Cortes left a message for Wood to contact him as soon as possible and got Wood's father's address.
By February 10, 2010, he had not heard from Wood so he mailed an appointment letter to Wood's reported residence as well as his father's residence, which directed Wood to report to Cortes' office in Madera on March 1 for an office visit. On February 18, 2010, Cortes received back the letter he had sent to Wood's reported residence where his grandmother lived; Cortes did not receive a letter back from Wood's father's residence. Wood did not appear at his office on March 1 and Cortes did not receive any telephone messages from Wood regarding the appointment.
On March 25, 2010, Cortes spoke with Wood's grandmother at her house. She told him that Wood did not live there, though he could come by from time to time, he had not been there for about two weeks, and three days earlier, Wood's father had picked up Wood's remaining belongings. Wood's grandmother told Cortes that she returned the appointment letter because Wood did not live there and rarely came by. One of the terms of Wood's probation is that he not be away from his reported residence, which was his grandmother's residence, for more than 24 hours before notifying Cortes. Another term of his probation prohibits him from changing his residence address without advance notification to Cortes. The court took judicial notice of its files in both cases, along with the fact that Wood was on felony probation and the terms and conditions of his probation.
Wood testified that he went to probation the day after he was sentenced and spoke with Deputy Probation Officer Skeen. Wood told Skeen he was there to sign up for "Prop. 36." Skeen looked up Wood's name on the computer and said she had not gotten the minute order yet. Skeen also said there was a problem because there was no Proposition 36 in the mountains anymore because of a lack of funding. Skeen said Cortes would be his probation officer and he would get a hold of him soon for a residence check. Wood gave his residence as 40255 Redbud and his telephone number as the one there. Wood also told Skeen he sometimes worked from time to time at 40765 Road 425A, and he would stay there at night if he worked late.
Wood had not heard from Cortes until the letter came in the mail that said to report to his office on March 1. Wood said he planned to go down there, but his ride fell though and the tram was not available. Wood claimed he called and left a message trying to reschedule. Wood obtained a driver's license in April 2010, which showed his address as 40255 Redbud Drive. Wood also said he had case law showing that his probation violations were actually drug violations, copies of which he gave to the court and prosecutor. Wood asked to be reinstated to Proposition 36 probation. Wood said he successfully completed a Proposition 36 program in 2006 and his cases were dismissed. He was willing to do a six-month live-in program in Fresno and complete Proposition 36 probation there.
The court explained that the terms and conditions at issue were the orders at sentencing that he was not to be away from the reported residence for more than 24 hours without prior notification to the probation officer and not to change his residence address without advance notification to the probation officer, both of which placed the burden on Wood to communicate with his probation officer. The court further explained that even assuming Wood left a message for Officer Cortes, he failed to follow-up when Officer Cortes did not return his call. The court found that Wood did not do what he was required to do, including failing to report monthly or as directed by the probation officer, as he did not do anything other than wait for a probation officer to track him down. The court further found the evidence was clear that he was on felony probation in the two cases, subject to certain terms and conditions, and the allegations of the May 27 petitions were proven.
The court then proceeded to sentencing after Wood agreed to be sentenced immediately. The court adopted the recommendation of the probation department to revoke Wood's Proposition 36 probation and reinstate him on section 1203 probation for a period of five years from the original date of December 1, 2009. The court ordered him to serve 180 days in custody of the Madera County Department of Corrections. The sentence applied concurrently to both cases.
DISCUSSION
Wood argues the order revoking his Proposition 36 probation must be reversed because the prosecution failed to prove he violated non-drug-related conditions of probation and the trial court failed to make express findings that the probation violations were drug-related.
"Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. The first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. (§ 1210.1, subd . (e)(3)(D).) The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. (§ 1210.1, subd. (e)(3)(E).) Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration. (§ 1210.1, subd. (e)(3)(F).) Upon such a violation, the court regains its discretion to impose jail or prison time. [Citation.] Proposition 36 does not, however, extend the same grace 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. (§ 1210.1, subd. (e)(2).)" (In re Taylor (2003) 105 Cal.App.4th 1394, 1397-1398, fns. omitted (Taylor).)
Wood was found to have violated the conditions of Proposition 36 probation that he (1) report to his probation officer monthly or as directed, (2) not be away from his reported residence for more than 24 hours without prior notification to his probation officer, and (3) not change his residence address without advance notification to his probation officer. There is no dispute that the instant probation violations were Wood's first violations of probation and there is no evidence Wood poses a danger to others. Moreover, there is no dispute that the court failed to make express findings that any of the violations were drug-related. Therefore, the question before us is whether the court erred in impliedly finding that the probation conditions were "non-drug-related condition[s] of probation" within the meaning of section 1210, subdivision (e)(2).
As a threshold issue, we address the court's failure to make express findings that the probation conditions were drug-related. Although the trial court made no express findings on this point, if a trial court determines a defendant is ineligible for Proposition 36 probation "we will imply the necessary finding. Moreover, we will sustain that implied finding as long as it is supported by substantial evidence." (People v. Dove (2004) 124 Cal.App.4th 1, 10.)
We note that Wood made no request or objection below regarding the absence of express findings. In other similar contexts, such failure to raise the issue below has been found fatal. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 356 ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"].)
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Wood nevertheless contends the trial court was required to issue a statement of reasons for revoking Proposition 36 probation, including whether the probation condition violated was or was not drug-related, citing People v. Tanner (2005) 129 Cal.App.4th 223 (Tanner). In Tanner, the appellate court, presuming that the due process principles that apply to formal traditional probation revocation hearings, including the right to a written statement of evidence relied on and the reasons for revoking probation, also applied to revocation of Proposition 36 probation, refused to imply a finding that the defendant was unamenable to drug treatment because the trial court never reached that issue, as the trial court already had revoked the defendant's Proposition 36 probation on other grounds. (Tanner, supra, 129 Cal.App.4th at p. 234.)
In contrast here, the trial court revoked Wood's Proposition 36 probation after finding the probation department had proven the allegations of its petitions, which included a request for a finding that the probation conditions violated were not drug-related. In traditional probation revocation hearings, due process is satisfied even in the absence of a written statement of evidence and reasons for revoking probation where there is a substantially equivalent substitute, such as a reporter's transcript of the court's oral statement of reasons for revoking probation. (People v. Moss (1989) 213 Cal.App.3d 532, 534; People v. Scott (1973) 34 Cal.App.3d 702, 708.) In this circumstance, where the reporter's transcript shows the court's reasoning for revoking probation and its decision to uphold the probation department petitions, we conclude the trial court impliedly found Wood's probation violations were not drug-related.
Turning to the probation conditions, we begin with the condition that Wood report to his probation officer monthly or as directed. The condition that a Proposition 36 probationer meet with a probation officer may be drug-related. Thus, in Taylor, the court held that a defendant's failure to report to the probation officer for drug testing constituted a violation of a drug-related condition of probation. (Taylor, supra, 105 Cal.App.4th at p. 1399.) On the other hand, "reporting to one's probation officer may be a condition of probation for any number of reasons, none of which is necessarily drug-related." (Id. at pp. 1398-1399.) "For example, such appointments might be related to a probationer's obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally." (Id. at p. 1399, fn. 7.)
It is the prosecution's burden to demonstrate that a condition of probation is non-drug-related. (People v. Atwood (2003) 110 Cal.App.4th 805, 811 (Atwood).) In Atwood, the defendant admitted the allegation that she failed to keep a scheduled appointment with her probation officer and thereby violated a condition of probation that required her to '"[f]ollow all orders of [the] probation department.'" (Id. at p. 808.) The record did not reflect the reason for the meeting with the probation officer. The appellate court held, "the People had the burdens of producing evidence and of persuasion that defendant's failure to report did not involve a drug-related condition of probation"; "the People adduced no evidence on the question"; and therefore "defendant's incarceration cannot be upheld." (Id. at pp. 812-813.) The appellate court remanded the case to the trial court to reopen the probation revocation hearing for additional evidence on whether the defendant violated a non-drug-related condition of probation. (Id. at p. 813.)
The People appear to concede that the record does not reveal why Wood was required to report to his probation officer and therefore the prosecution failed to meet its burden of showing that condition was non-drug-related. We agree. But, as the People point out, there are two other probation violations that they contend are not drug-related conditions, namely Wood's failure to keep his probation officer apprised of his whereabouts and his residence address, which support the trial court's implied finding that Wood willfully violated at least one non-drug-related condition of probation. Wood asserts these violations may or may not be drug-related, and the prosecution's failure to present evidence on this point mandates a new hearing.
Although the prosecution did not present evidence regarding the purpose of these conditions, we conclude they are not "drug-related" conditions as envisioned under Proposition 36, neither are they ambiguous, as the allegation of failing to keep a schedule appointment was in Atwood. The conditions required Wood to notify his probation officer of any change in his reported address and when he would be away from his reported address for more than 24 hours. The purpose of these conditions is self-evident; a probation officer cannot supervise a probationer whose whereabouts are unknown. To categorize as "drug-related" obligations to give notice of any change in residence and that the probationer will be away from that residence for more than 24 hours would be to make all terms of probation imposed in Proposition 36 cases drug-related conditions. Such a conclusion would conflict with the distinction between drug and non-drug-related conditions made in section 1210.1, subdivision (e).
The court revoked Wood's Proposition 36 probation based on its implied findings that Wood committed three non-drug-related violations of probation. Although we have concluded the court erred in finding one of these violations was drug-related, we have determined Wood's two other probation violations were not drug-related. Accordingly, the trial court properly revoked Wood's Proposition 36 probation and sentenced him to section 1203 probation.
DISPOSITION
The judgment is affirmed.