Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM027508 & CM028391
SCOTLAND, P. J.
Based on contraband seized during a lawful search in November 2007, defendant Michael Shawn Bonser entered a negotiated plea of no contest to possessing methamphetamine, and four prior prison term allegations were dismissed. (Case No. CM027508.) Imposition of sentence was suspended, and he was placed on probation pursuant to Penal Code section 1210.1 (which, as a condition of probation, requires the successful completion of a program for drug addiction) and ordered to pay various fines and fees, not including a drug program fee (Health & Saf. Code, § 11372.7; hereafter § 11372.7).
In January 2008, defendant possessed methamphetamine again. He entered a negotiated plea of no contest to that crime, and other charges--including prior prison term enhancements--were dismissed. (Case No. CM028391.) Imposition of sentence was suspended, and he was again placed on drug-program probation and ordered to pay fees and fines other than a section 11372.7 drug program fee. Based on his new conviction, probation was revoked but reinstated in case No. CM027508.
After defendant admitted two subsequent violations of probation, the court found (1) defendant was not eligible for drug-program probation in case No. CM027508 because he had thrice violated probation, and (2) he was not suitable for ordinary probation. Consequently, defendant was sentenced to a term in state prison, thus making him ineligible for drug-program probation on his conviction in case No. CM028391, for which the court imposed a consecutive prison term. The court ordered defendant to pay a section 11372.7 drug program fee of $540 in each case.
On July 30, 2008, pursuant to the parties’ stipulation, the court suspended the criminal proceedings and instituted civil proceedings to commit defendant to the California Rehabilitation Center (CRC). Nothing in the civil commitment order purported to impose any fees or fines. Defendant waived his right to return to the trial court for resentencing in the event of his termination from the program. (Welf. & Inst. Code, §§ 3051, 3053; People v. Sanders (2009) 170 Cal.App.4th 1236 (hereafter Sanders).) The court stated that it would not change the imposed sentence in any respect were CRC to terminate defendant from the program and return him to court.
On appeal “from the order or judgment” entered on July 30, 2008, defendant contends the trial court lacked jurisdiction to impose the section 11372.7 drug program fees on revocation of probation because it had not imposed them at the time it placed defendant on probation. We requested supplementary briefing from the parties on whether the issue is cognizable on appeal in light of the suspension of criminal proceedings during defendant’s civil commitment to CRC (citing People v. Barnett (1995) 35 Cal.App.4th 1 (hereafter Barnett)). We conclude it is not and, thus, shall affirm the judgment before us, i.e., the judgment of civil commitment.
DISCUSSION
In Barnett, criminal proceedings were suspended, civil proceedings were commenced, and Barnett was committed to CRC. He appealed “from the judgment of commitment insofar as it imposed the restitution fine.” (Barnett, supra, 35 Cal.App.4th at p. 3.)
Barnett held that “the sentence imposed..., including the restitution fine, is for practical purposes only an interim sentence.... There will be another sentencing hearing at a later date, at which time the court will be entitled to modify Barnett’s sentence and even to dismiss the charges against him. Any determination of the validity of the current sentence, accordingly, would be premature.” (Barnett, supra, 35 Cal.App.4th at p. 3, italics added.) “The actual sentence (or dismissal of charges) will not be entered until Barnett is discharged from CRC and returned to the trial court for further proceedings.... Barnett may appeal from any sentence imposed at that time. [Citations.] Any ruling by us on what is for sentencing purposes only an interlocutory judgment would be premature.” (Id. at p. 4 [italics added]; accord, People v. Murphy (1969) 70 Cal.2d 109, 115 [“an attempted review of the judgment of conviction [in an appeal from the judgment of civil commitment] would necessarily [be] premature: until the defendant [is] returned to court and sentenced after his rejection or release from the rehabilitation program..., the criminal charge ha[s] not been prosecuted to a ‘final judgment of conviction’ within the meaning of the basic criminal appeal statute”].)
Here, defendant does not provide any basis to distinguish Barnett, other than to say this case involves the revocation of probation rather than a conviction. But this does not change the nature of what defendant seeks to reach, i.e., what did or did not occur in earlier proceedings underlying the now suspended criminal action, and which may ultimately be moot. Defendant cites no other authority to contradict the conclusion in Barnett; and the People do not attempt to explain why an issue relating to the sentence imposed in the suspended criminal proceedings is cognizable in an appeal from the judgment in an entirely separate proceeding for civil commitment. (Murphy, supra, 70 Cal.2d at pp. 114-115 [“in form and in substance, the civil commitment proceedings are wholly distinct from the criminal prosecution”].)
It is true that defendant entered a Sanders waiver, putting his sentence into effect without further reconsideration by the trial court in the event that CRC found defendant ineligible or otherwise terminated him from the program. This, however, does not foreclose defendant from seeking a dismissal of the charges if he successfully completes the CRC program; thus the sentence remains an interlocutory ruling at this point. More importantly, the Sanders waiver does not alter the distinct, suspended nature of the criminal proceeding outside the ambit of an appeal from the judgment of civil commitment. For these reasons, we cannot rule on this issue raised by defendant in the present appeal. (Barnett, supra, 35 Cal.App.4th at p. 3.)
There being no other challenge to the judgment from which defendant appeals, there is no basis upon which to reverse it.
DISPOSITION
The judgment of civil commitment is affirmed.
We concur: RAYE, J., BUTZ, J.