People v. Guzman CA2/3

Filed 6/2/15 P. v. Guzman CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B253469 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA130604) v. JOSE JOHN GUZMAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed in part and vacated in part; remanded for further proceedings. Craig C. Kling, under appointment by the Court of Appeal; and Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent. _________________________ Defendant and appellant Jose John Guzman appeals from the judgment entered following a jury trial that resulted in his convictions for possession of a controlled substance, methamphetamine, and misdemeanor possession of a methamphetamine pipe. The trial court sentenced Guzman to 16 months in local custody. Guzman argues that the trial court erred by denying him probation under Proposition 36, and by imposing a sentence greater than 30 days. He also contends that pursuant to Proposition 47, his felony conviction for possession of a controlled substance must be reduced to a misdemeanor. We vacate the judgment of sentence and remand the matter for resentencing based on a reassessment of Guzman’s amenability for drug treatment. On remand the trial court is also directed to determine whether Guzman meets the eligibility requirements to designate the possession of methamphetamine offense a misdemeanor and, if he is eligible, to designate the offense a misdemeanor. FACTUAL AND PROCEDURAL BACKGROUND 1. Facts On May 31, 2013, just after midnight, Los Angeles County Deputy Sheriff Cuauhtemoc Gonzalez and his partner were on patrol in the parking lot of the Travel Inn Motel in Whittier. Gonzalez observed Guzman arrive at the motel in a taxicab with a female companion. Gonzalez recognized the woman, and believed she was on probation. When Guzman and his companion exited the cab, Gonzalez questioned them. Guzman stated that he was staying in room 208 at the motel, and that there “might be” methamphetamine in the room. Gonzalez conducted a consent search of room 208 and discovered a baggie containing a usable amount of a substance containing methamphetamine, and a glass methamphetamine pipe. After being advised of and waiving his Miranda rights,1 Guzman told Gonzalez that everything in the room was his. 1 Miranda v. Arizona (1966) 384 U.S. 436. 2 He also signed a statement acknowledging ownership of the methamphetamine and pipe and confirming that the search was consensual.2 2. Procedure Trial was by jury. Guzman was convicted of possession of a controlled substance, methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)), and possession of a methamphetamine pipe, a misdemeanor (Health & Saf. Code, former § 11364.1, subd. (a)). The trial court sentenced Guzman to the low term of 16 months in local custody. It imposed a restitution fine, a suspended parole restitution fine, a laboratory analysis fee, a penalty assessment, a court operations assessment, and a criminal conviction assessment. Guzman appeals. DISCUSSION 1. Sentencing under Proposition 36 Guzman contends the trial court erred by sentencing him to a jail term, rather than to Proposition 36 probation, absent an express finding he was unamenable to any and all forms of drug treatment. He further avers that, even if the court had made such a finding, the record did not contain clear and convincing evidence of unamenability, and Penal Code section 1210.1, subdivision (b)(5)3 authorized only a 30-day sentence, not the 16- month sentence actually imposed. We agree. a. Applicable law The Substance Abuse and Crime Prevention Act of 2000, commonly known as Proposition 36, was enacted to divert nonviolent defendants charged with simple drug possession or drug use offenses into community-based substance abuse treatment programs, rather than prison. (People v. Castagne (2008) 166 Cal.App.4th 727, 732; 2 At trial, Guzman testified that he was actually staying in room 207; he had not told Gonzalez the methamphetamine or pipe belonged to him; and he signed the form admitting possession only after the deputies threatened to arrest his companion. He denied the methamphetamine or the pipe were his. 3 All further undesignated statutory references are to the Penal Code. 3 People v. Tanner (2005) 129 Cal.App.4th 223, 231; People v. Esparza (2003) 107 Cal.App.4th 691, 695-696.) Proposition 36, codified at, inter alia, sections 1210 and 1210.1, mandates probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense. (§ 1210.1, subd. (a) [“Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation”]; People v. Canty (2004) 32 Cal.4th 1266, 1275; People v. Castagne, supra, at p. 732.) Persons convicted of nonviolent drug offenses are entitled to Proposition 36 probation under section 1210.1, subdivision (a), unless they fall within one of five express statutory disqualifications specified in subdivision (b). (Castagne, supra, at p. 732; People v. Esparza, supra, at p. 699 [“When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors . . . .”].) The intent of the voters was “to prevent trial courts from incarcerating and reincarcerating nonviolent drug users. . . . Only defendants who fall into a particular excluded category of persons may be incarcerated.” (People v. Murillo (2002) 102 Cal.App.4th 1414, 1418.) Section 1210.1, subdivision (b)(5), is the exception relevant here. That subdivision provides that Proposition 36 probation is not required for “[a]ny defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210.[4] Notwithstanding any other provision of law, the trial court shall sentence that defendant to 30 days in jail.” (§ 1210.1, subd. (b)(5).) 4 Section 1210, subdivision (b) defines “drug treatment program” as “a state licensed or certified community drug treatment program, which may include one or more of the following: drug education, outpatient services, narcotic replacement therapy, residential treatment, detoxification services, and aftercare services.” 4 b. Additional facts At sentencing, the trial court observed that Guzman had two prior drug-related convictions within the meaning of section 1210.1, subdivision (b)(5), and had completed two separate courses of treatment under Proposition 36. Defense counsel confirmed that Guzman had been sentenced to Proposition 36 probation on the two prior convictions, had successfully completed a treatment program in each, and had earned dismissal of each conviction. Defense counsel conceded, however, that based on the two prior convictions, Guzman was not eligible for Proposition 36 probation. Defense counsel averred that the maximum sentence the court could impose under section 1210.1, subdivision (b)(5) was 30 days in jail. The prosecutor disagreed. He pointed out that in addition to the two prior Proposition 36 cases, Guzman had suffered other drug-related offenses that predated the enactment of Proposition 36, and Guzman simply had “too many convictions [to] fall within” Proposition 36. The prosecutor urged that “[i]n theory, he can pick up ten more convictions, and under the defense argument, he would still fall within the 30 days’ limitation . . . and that just seems unreasonable to expect that.” The trial court reasoned that the statute was ambiguous. It interpreted the subdivision’s last phrase – “the trial court shall sentence that defendant to 30 days in jail”—to mean that the court was required to sentence Guzman to no less than 30 days, but could impose a greater sentence. (§ 1210.1, subd. (b)(5).) A contrary conclusion was illogical, because it “would give him a max[imum] 30-day sentence indefinitely.” The court explained: “There’s no dispute . . . that Mr. Guzman has, in fact, been sentenced to [Proposition] 36 previously, twice, two times before. He’s also had numerous other convictions for narcotics-related offenses and non-narcotic-related offenses, . . . primarily . . . misdemeanors. [¶] Based on his prior history – and . . . for purposes at least for this particular code section, I’m finding that he falls within the purview of that 1210[.1] (b)(5), but I’m interpreting [§ 1210.1, subd. (b)(5)] as being not a 30-day limit but a 30- day minimum. [¶] I’m going to find based on his criminal history as articulated in the early disposition report and the fact that he has suffered those prior convictions, for 5 which I can take judicial notice.” Accordingly, the trial court imposed a 16-month sentence. c. Absence of unamenability finding Guzman contends the trial court improperly denied Proposition 36 probation because it did not find he was “unamenable to any and all forms of available drug treatment” as required by section 1210.1, subdivision (b)(5). The People concede the point, and we agree. Neither the court, the prosecutor, nor defense counsel ever mentioned the issue of amenability, but simply assumed subdivision (b)(5) applied because Guzman had suffered two prior qualifying offenses and had participated in two courses of treatment.5 To the contrary, under the plain language of the statute, a prerequisite to application of the exception is that the court find “by clear and convincing evidence” that the defendant is “unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210.” (§ 1210.1, subd. (b)(5).) Assuming arguendo an implied finding of unamenability might have sufficed, the record does not contain evidence from which we can infer such an implicit finding. (See People v. Tanner, supra, 129 Cal.App.4th at p. 237 [where defendant did not admit he was unamenable to treatment, the prosecutor did not raise the amenability issue, and the probation report was equivocal on the question, the court could not “find the trial 5 The issue is not waived or forfeited on appeal despite the fact Guzman did not object to the absence of an unamenability finding below. “When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors . . . . Placement of eligible defendants in Proposition 36 programs is not a discretionary sentencing choice made by the trial judge and is not subject to the waiver doctrine.” (People v. Esparza, supra, 107 Cal.App.4th at p. 699.) Moreover, it is apparent that the court, defense counsel, and the prosecutor were all operating under the incorrect assumption that Guzman’s two prior convictions and courses of treatment, without more, precluded Proposition 36 probation pursuant to section 1210.1, subdivision (b)(5). Under these circumstances, there was no forfeiture. (See People v. Tanner, supra,129 Cal.App.4th at p. 238 [where the court and all counsel were operating under a mistaken belief that Proposition 36 probation would automatically be revoked if the probationer had three violations of drug-related probation conditions, defendant’s failure to object to the trial court’s termination of probation did not waive the issue on appeal].) 6 court even impliedly found [the defendant] was unamenable to drug treatment under the Act”].) The trial court here focused entirely on the number of Guzman’s prior convictions, not his amenability to treatment. Nothing in the record suggests Guzman is obviously unamenable. Guzman successfully completed drug treatment programs in connection with the two prior Proposition 36 convictions. There was no showing he had received treatment for the 1984 and 1991 convictions that predated Proposition 36. The probation report did not suggest Guzman was unamenable to treatment. To the contrary, it stated: “Although the defendant has an extensive criminal record, he remains eligible and a suitable candidate for probation supervision. The defendant is gainfully employed and does not appear to pose a threat to the community since his prior offenses are mainly drug related. Therefore, a formal grant of probation with certain strict terms and conditions may serve as a deter[r]ent and en[c]ourage the defendant to seek rehabilitation.” People v. Juhasz (2013) 220 Cal.App.4th 133, is instructive. There, the defendant had failed at two prior attempts at Proposition 36 treatment. Based on these two failures, two trial judges found him unamenable within the meaning of section1210.1, subdivision (b)(5). One of the judges reasoned he was unamenable because “ ‘he has had many opportunities and squandered them all.’ ” (People v. Juhasz, supra, at p. 137.) Noting that clear and convincing evidence means evidence which is so clear as to leave no substantial doubt, the appellate court held that the evidence was insufficient to support a finding of unamenability. (Id. at p. 139.) It reasoned: “While it is true that defendant’s record supported the conclusion that he had ‘squandered’ opportunities for treatment in the past cases, and that fact is not without significance, the court gave no consideration in the present case to what treatment might now be available to defendant within the meaning of section 1210, subdivision (b).” (Ibid.) The trial court ignored the defendant’s request for treatment, simply suggesting “that no matter the prospects for success in the future, his prior missteps foreclosed consideration of further treatment attempts. Whatever appeal the court’s logic might have in the abstract, it is at odds with the intent of Proposition 36 as expressed in subdivision (b)(5).” (Ibid.) 7 If two failed attempts at treatment pursuant to Proposition 36 were insufficient to show unamenability in Juhasz, Guzman’s two prior successful completions of treatment cannot be sufficient. Accordingly, the trial court erred by denying Proposition 36 probation without conducting a hearing on the issue and making a finding that clear and convincing evidence demonstrated unamenability. We therefore vacate the 16-month sentence and remand for further proceedings. (People v. Muldrow (2006) 144 Cal.App.4th 1038, 1041.) d. Section 1210.1, subdivision (b)(5) requires a 30-day sentence, not a 30-day minimum. Guzman argues that the trial court erred by imposing a 16-month sentence. He contends that the only permissible sentence was the 30 days in jail mandated by section 1210.1, subdivision (b)(5). The People disagree, contending the 30-day sentence referenced in subdivision (b)(5) is a statutory minimum, not a fixed term. This issue is moot in light of our vacation of the sentence. (See People v. Castagne, supra, 166 Cal.App.4th at p. 737, fn. 3.) However, for the trial court’s guidance on remand, we note that People v. Harbison (2014) 230 Cal.App.4th 975, recently rejected the People’s characterization of the statute. In Harbison, a divided court concluded that “persons who are convicted of simple possession of controlled substances and found to be unamenable to treatment” under section 1210.1, subdivision (b)(5) “must be sentenced to 30 days in jail—no more, no less, and nothing else . . . .” (Harbison, supra, at p. 978.) 2. Reduction of count 1 to a misdemeanor under Proposition 47 On November 4, 2014, while Guzman’s appeal was pending, the electorate enacted Proposition 47, “The Safe Neighborhoods and Schools Act.” It went into effect the following day. (Cal. Const., art II, § 10, subd. (a).) Proposition 47’s uncodified findings and declarations state that the purpose of the law was to “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs . . . .” (Note, Deering’s Ann. Penal Code, § 1170.18 8 (2015 supp.) p. 79.) To that end, Proposition 47 amended various provisions of the Penal and Health and Safety Codes to reduce certain drug and theft offenses to misdemeanors, unless committed by ineligible defendants. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see Couzens & Bigelow, Proposition 47 (Feb. 2015) p. 24, at