Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. S483507
OPINION
Jones, P.J.
Ansar El Mohammod appeals from an order revoking her Proposition 36 probation. (See former Pen. Code, § 1210.1, subd. (e)(3).) She contends the trial court erred when it failed to conduct separate hearings on the district attorney’s second and third petitions alleging she had violated her probation. We conclude separate hearings were not required and will affirm.
Appellant’s name is spelled differently in different documents that have been filed. We will use the version set forth in the order being appealed.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2003, the trial court placed appellant on Proposition 36 probation after she pleaded no contest to possessing cocaine base. (Health & Saf. Code, § 11350, subd. (a).)
In April 2004, the district attorney filed a petition alleging appellant had violated her probation by failing to participate in court-ordered drug treatment. In August 2004, appellant admitted the allegation and the court found that appellant had committed a drug-related probation violation.
In June 2005, the district attorney filed a second petition alleging appellant had violated her probation by missing several drug treatment and Narcotics Anonymous sessions. A hearing to evaluate the petition was set for September 30, 2005. However, that hearing had to be continued because appellant missed a readiness conference. Before the continued hearing could occur, on December 12, 2005, the district attorney filed a third petition alleging appellant had violated her probation by failing to comply with her drug testing requirements. On February 6, 2006, the district attorney amended the third petition to allege that appellant had tested positive for THC on January 18, 2006, and that she failed to prove that she had attended Narcotics Anonymous meetings.
A hearing on the outstanding second and third petitions began on March 24, 2006, and was completed on April 12, 2006. The court found the allegations of the second and third petitions to be true. Having found that appellant had committed three drug-related probation violations, the court terminated appellant’s Proposition 36 probation. However, the court then reinstated standard probation on the condition that appellant serve nine months in the county jail.
II. DISCUSSION
Proposition 36 was enacted by the voters of this state as a way of diverting nonviolent drug offenders into community-based substance abuse treatment programs. (People v. Williams (2003) 106 Cal.App.4th 694, 698.) One way Proposition 36 accomplished this goal was through the enactment of section 1210.1. (Williams, supra, at p. 698.) Under the version of section 1210.1 that is at issue here, a defendant who violated probation by committing a nonviolent drug possession offense or by violating a drug-related probation condition was given two opportunities to reform. (Ibid.) If the defendant then committed a third offense or violation, she was no longer eligible for probation under the statute. (Ibid.)
The version of section 1210.1, subdivision (e)(3) that is at issue here read, in part:
Here, appellant was placed on Proposition 36 probation in July 2003, and in April 2004, the district attorney filed a petition alleging appellant had committed a drug-related probation violation. Appellant admitted the allegation in August 2004. In June 2005, the district attorney filed a second petition alleging appellant had committed more drug-related violations. A hearing on the petition was scheduled; however, it had to be continued because appellant missed a readiness conference. Before the continued hearing could occur, in December 2005, the district attorney filed a third petition alleging appellant had committed more drug related probation violations. The court then conducted a single hearing to evaluate the allegations that had been made in the outstanding second and third petitions. Appellant contends this was error and that the court was required to conduct separate hearings on the second and third petitions. We disagree.
The court in People v. Budwiser (2006) 140 Cal.App.4th 105, faced this same issue. There, the district attorney filed one petition on March 4, 2005, alleging the defendant had violated his Proposition 36 probation, and a second petition three days later. The trial court evaluated both petitions at a single hearing and found them to be true. On appeal, the defendant argued the court erred by holding one hearing on the two petitions. The Budwiser court disagreed: “Contrary to defendant’s argument [section 1210.1, subdivisions (e)(3)(A) and (e)(3)(B)] do not require separate hearings. The event triggering revocation for each subdivision is the separate motion to revoke probation filed by the People. Although each subdivision requires ‘a hearing to determine whether probation shall be revoked,’ nothing in the statute requires that the hearings be separate. What is important under subdivisions (A) and (B) is that the defendant has committed separate violations of probation (indicating his unamenability to treatment), resulting in separate motions (petitions) to revoke, not whether the violations are adjudicated in separate hearings. Moreover, it would be an absurd waste of judicial resources to construe the statute so as to require a separate hearing for each motion to revoke probation. We must give the statute a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.] [¶] The trial court did not err in conducting a single hearing to adjudicate the two separate probation violations and the resultant petitions to revoke probation.” (Id. at p. 109.)
We find the Budweiser analysis to be persuasive and will apply it here. We conclude the court did not err when it held a single hearing to evaluate the second and third petitions.
Appellant contends the trial court erred. He relies on People v. Tanner (2005) 129 Cal.App.4th 223, where the trial court revoked the defendant’s Proposition 36 probation based on the sheer number of drug-related violations that had been alleged. (Id. at pp. 234-235.) On appeal, the defendant argued this was error and that section 1210.1 requires the state to bring three separate noticed motions to revoke before the court may revoke probation based solely on drug-related violations. (Tanner, supra,at p. 235.) The People conceded the point and the Tanner court agreed, “the first time the state moves for revocation and it is established an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless the offender poses a danger to others. The second time the state moves for revocation and it is established an offender has violated a drug-related condition of probation for a second time, he is again entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. Only when the state moves for a third time for revocation and it is established the offender has violated a drug-related condition of probation a third time ‘does an offender lose the benefit of Proposition 36’s directive for treatment instead on incarceration.’” (Id. at pp. 235-236, internal citations omitted.)
Appellant relies on language in Tanner where the court was discussing what type of notice; written or oral, is required for due process purposes. The Tanner court resolved that issue as follows: “We believe that consistent with the purpose of the Act, the trial court has the authority to consider the matters brought before it by the state and to revoke probation under the Act after it has been moved three separate times for violations of drug-related conditions of probation and those are proven or admitted after three hearings.” (Tanner, supra, 129 Cal.App.4that p. 236, italics added.) Appellant focuses on the language we have italicized and argues Tanner requires that the court must conduct three separate hearings on each of three separate petitions. However, that is not what the Tanner court said. The court ruled that Proposition 36 probation may be revoked after the state moves three times alleging a violation and three hearings have been held. The court did not rule that the court was required to conduct separate hearings on each petition because that issue was not presented. It is of course, well settled that cases are not authority for issues that are not presented. (People v. Ceballos (1974) 12 Cal.3d 470, 481.)
We conclude the court did not err when it conducted a single hearing to address the allegations that had been made in the second and third petitions.
III. DISPOSITION
The order revoking appellant’s Proposition 36 probation is affirmed.
We concur: Simons, J., Gemello, J.
“(A) If a defendant receives probation under subdivision (a), and violates that probation . . . by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. . . .
“(B) If a defendant receives probation under subdivision (a), and for the second time violates that probation . . . by violating a drug-related condition of probation, and the state moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. . . .
“(C) If a defendant receives probation under subdivision (a), and for the third time violates that probation . . . by violating a drug related condition of probation, and the state moves for a third time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a)” (See Stats. 2001, ch. 721, § 3.)