Opinion
A153189
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. DASEAN RAYMOND WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR327607)
Proposition 36, enacted by the voters in 2000, generally prohibits the incarceration of nonviolent drug offenders and mandates that they instead initially receive substance abuse treatment. (See Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2000), §§ 2(b), 3(a); Pen. Code, §§ 1210.1 [probation], 3063.1 [parole].) Some offenders are excluded from its protections, however, including "[a] parolee who refuses drug treatment as a condition of parole." (§ 3063.1, subd. (b)(3).)
Unless otherwise noted all further statutory references are to the Penal Code.
Felony offender Dasean Williams was placed on postrelease community supervision (PRCS) following his release from prison (see § 3450 et seq.) but then violated the terms of his PRCS, including several drug-related conditions. The superior court revoked his PRCS and then reinstated him on PRCS subject to the same terms and conditions as originally imposed, but also determined he is ineligible for protection under Proposition 36 for any future violations of the terms of his PRCS because he refused to participate in a mandatory drug treatment program while under supervision. The practical effect of the court's determination is that if William again violates any condition of PRCS, including one that is drug-related, he may be incarcerated in county jail. (See §§ 3454, subds. (b) & (c), 3455, subd. (d).)
For violation of any PRCS conditions, without limitation, individuals may be incarcerated for "flash" periods of up to 10 days in jail (see § 3454, subds. (b), (c)) and, where lesser sanctions would not suffice, for periods of up to 180 days upon revocation of PRCS (§ 3455, subds. (a)(2), (d)).
Williams now appeals, contending the court erred in determining he is no longer eligible for Proposition 36 protection, because he did not refuse drug treatment within the meaning of Penal Code section 3063.1, subdivision (b)(3).
We affirm.
BACKGROUND
Williams was sentenced to a prison term of two years and eight months for felony possession of a firearm (§ 29800, subd.(a)(1)) and driving recklessly while fleeing from police (Vehicle Code, § 2800.2). On October 10, 2015, he was released from prison into post-release community supervision, subject to various terms and conditions. Beginning in approximately April 2016, he failed to report to his supervising probation officer on numerous occasions, and failed to show up for weekly drug testing. Eventually, in August 2016, his supervising officer ordered him to participate in an outpatient substance abuse treatment program after Williams admitted to having used marijuana and ecstasy but refused a drug test. Several months later, in October, he tested positive for cocaine and a number of other drugs and after that, he skipped all of his weekly drug tests and all of his appointments with his supervising probation officer except one in early December when he showed up two hours late, vomiting in the building lobby.
Williams never enrolled in the required drug treatment program nor ever attended a single session. He skipped his initial intake appointment, repeatedly failed to attend a program orientation session despite repeatedly being directed by his supervising probation officer to do so and never even contacted the program staff. Eventually in January 2017, the drug treatment program gave up and closed its file on him, deeming him "not enrolled."
In the meantime, by Williams' own admission, he had lapsed into heavy drug use. He later told his supervising probation officer, "I was using the whole time . . . [t]hat's the 100% truth. I was out getting high." He admitted using heroin, "near[ly] every other day" and sometimes even daily.
On January 30, 2017, the Solano County Probation Department filed a petition to revoke Williams' PRCS, alleging he violated its terms and conditions by failing to report to his supervising agency, failing to submit to drug testing, failing to abstain from illegal drug use and failing to attend and complete drug treatment. The petition included a request that Williams be deemed no longer eligible for continued supervision pursuant to section 3063.1 for the remainder of his PRCS term "based on Williams' refusal to attend treatment and his ongoing pattern of drug related violations," and that, as such, he could be re-incarcerated for drug-related violations.
A bench warrant issued. Nearly eight months later, on September 20, 2017, Williams was arrested on unrelated charges (principally, felony weapons charges and related misdemeanors) and, as a result, he was returned on the outstanding warrant. By that juncture, it had been nine months since he had had any contact with his supervising probation officer save for one phone call.
Following a contested hearing on October 2, 2017, the superior court found Williams had violated his PRCS, and determined he was no longer eligible for protection under section 3063.1 because, for nearly a year, "[h]e in effect is refusing and has refused drug treatment." The court continued the matter for sentencing and referred it to the probation department for a recommendation.
Thereafter, Williams was interviewed while in custody and expressed some interest and willingness to participate in drug treatment. He acknowledged to his probation officer he "need[e]d help" but denied a need for residential treatment, thought he could "do" the program he previously had been directed to attend if he went two or more times a week and was willing to attend a methadone clinic. He insisted he was being "sincere," and said the drug treatment program would help him "be a better person in life." Although he acknowledged his previous shortcomings and could not identify specific steps he would take to improve his compliance with his PRCS conditions, he claimed to have changed his ways, telling his supervising probation officer, "I'm a different person. . . . I've gone to AA meeting [sic] in here and I went to Church." He really just wanted a chance to show he could do it, and didn't want to end up like the older men surrounding him in jail.
On October 30, the court revoked and reinstated Williams' PRCS on the same terms and conditions, subject to him serving 61 days in local jail with credit for time served. The court reconfirmed he was no longer eligible for continued supervision under section 3063.1
No objection was made below to the jail term, and no issue is raised on appeal concerning it. We express no opinion as to whether that aspect of the court's ruling contravenes Proposition 36.
This appeal followed.
DISCUSSION
We do not understand Williams' arguments as a challenge to the superior court's factual finding that he refused to undergo drug treatment. Rather, in contesting the revocation of his Proposition 36 eligibility, Williams raises essentially two legal points. First, he argues his prior refusal to undergo treatment could not eliminate his Proposition 36 eligibility, because he never refused drug treatment "as a condition of parole" within the meaning of section 3063.1, subdivision (b)(3), but, on the contrary, was willing to undergo treatment by the time of the hearing at which his PRCS was reinstated. He asks us to construe the statute as eliminating eligibility only if a person expresses "a present intent to refuse drug treatment as a condition of parole." Second, he argues it was inconsistent for the court to deem him ineligible for protection under Proposition 36 while at the same time reinstating him on terms that include continued drug treatment.
His brief contains no argument heading to that effect. He contends the appropriate standard of review is de novo because, he says, the case involves a question of statutory interpretation. And he does not discuss the substantial evidence standard which would govern any challenge to the court's factual findings. (See, e.g., People v. Johnson (2003) 114 Cal.App.4th 284, 290; see also People v. Castagne (2008) 166 Cal.App.4th 727, 736 (Castagne) [where evidence is in conflict, question whether defendant's acts and omissions evince a complete refusal to undergo drug treatment is "to be considered and resolved by the trier of fact"].)
Subject to certain exceptions, section 3063.1, which was added by Proposition 36, prohibits the suspension or revocation of parole for the commission of a nonviolent drug possession offense or for violating any drug-related condition of parole, provides for drug treatment and prohibits incarceration for the first such parole violation. (See § 3063.1, subds. (a), (d)(3)(A).) As noted, at issue here is subdivision (b)(3) of the statute, which renders section 3063.1 inapplicable to "[a] parolee who refuses drug treatment as a condition of parole." We assume for purposes here the statute applies not just to parolees but also to individuals on post-release community supervision. Nevertheless, we reject Williams' arguments.
Post-release community supervision is distinct from parole and is reserved for less serious offenders, and was created after the adoption of Proposition 36 through the passage of realignment legislation in 2011. (See generally People v. Armogeda (2015) 233 Cal.App.4th 428, 434; §§ 3000, subd. (a)(1), 3450 et seq.) Violations of PRCS conditions may result in incarceration regardless of their nature. (See footnote 2, ante.) Nevertheless, courts have held individuals may not be incarcerated for violations of PRCS conditions in a manner that conflicts with Proposition 36, a proposition neither party here questions or asks us to address. (See People v. Gutierrez (2016) 245 Cal.App.4th 393, 404 [holding that section 3455 may not be applied "in a manner that is inconsistent with the treatment requirements of Proposition 36"]; Armogeda, at p. 436 [holding section 3455 invalid to the extent it permits incarceration of nonviolent drug offenders under circumstances not permitted by Proposition 36].)
First, even if the trial court erred in declaring Williams to be prospectively ineligible for Proposition 36 protection for future drug-related violations, he does not explain how the error, if any, is prejudicial. (See §§ 1258, 1404; Cal. Const., art. VI, §13.) Having violated a drug-related condition of his PRCS once already, Williams by the statute's plain terms may be incarcerated if he commits a second violation. It didn't require a declaratory finding of ineligibility by the trial court to disqualify Williams from protection against future incarceration in the event of a second violation. He will be ineligible by operation of law. (See footnote 6, ante.) The trial court's ruling in effect gave Williams fair warning of the consequences of a future violation. In any event, at worst it amounted to unnecessary verbiage.
Section 3063.1, subdivision (d)(3)(B) states: "If a parolee receives drug treatment under subdivision (a), and during the course of drug treatment for the second time violates that parole either by committing a nonviolent drug possession offense, or by violating a drug-related condition of parole, . . . a hearing shall be conducted to determine whether parole shall be revoked. If the alleged parole violation is proved, the parolee is not eligible for continued parole under any provision of this section and may be reincarcerated." (Italics added.)
Second, Williams' construction of section 3063.1, subdivision (b)(3) as requiring an "express[ion] [of] present intent to refuse drug treatment as a condition of parole" is contrary to how every reported case of which we are aware has construed and applied Proposition 36. The leading case is People v. Guzman (2003) 109 Cal.App.4th 341, which rejected the argument that an individual is ineligible only if he or she refuses drug treatment at the time of the initial grant of probation, and held that a defendant who subsequently, by his or her conduct, refuses to undergo drug treatment also is ineligible. (See id. at pp. 349-350.) Guzman thus upheld the termination of Proposition 36 probation and imposition of a 180-day jail sentence for a probationer who initially agreed to drug treatment as a condition of probation but then, like Williams, failed to report for any of his court-ordered treatment and essentially absconded from supervision. (Ibid.) The court was emphatic: "In this case, defendant made no effort whatsoever to comply with his drug treatment probation. He instead absconded from the jurisdiction of the trial court by leaving the United States. Moreover, regardless of his reasons for doing so, upon his return to this country, he did not report voluntarily to his probation officer, the drug treatment center or the trial court. He persisted, rather, in disregarding the trial court's orders and the requirements accompanying his grant of probation pursuant to Proposition 36. Hence, this is not a case in which a defendant commences drug treatment and falters. This is not a case in which a defendant responded to a family emergency and then voluntarily reported to his probation officer for supervision or the drug treatment center for treatment. This is a case in which defendant, by his acts and omissions, evinced a complete and unequivocal refusal to undergo drug treatment." (Id. at pp. 349-350, italics added.)
Not one court has questioned Guzman and, as many post-Guzman decisions reflect, an individual who utterly fails to follow through and enroll in a drug treatment program may be found to "refuse drug treatment" for Proposition 36 purposes. (See People v. Bauer (2011) 193 Cal.App.4th 396, 400-401; People v. Friedeck (2010) 183 Cal.App.4th 892, 897; People v. Johnson (2003) 114 Cal.App.4th 284, 300; People v. Strong (2006) 138 Cal.App.4th Supp. 1, 6.) It is a factual issue, however, and not every recalcitrant defendant who fails initially to show up for treatment must be found to have "refused." (See, e.g., Castagne, supra, 166 Cal.App.4th at pp. 733-737 [acknowledging but distinguishing Guzman and some of its progeny on the facts]; People v. Dagostino (2004) 117 Cal.App.4th 974, 994-996.)
Williams' efforts to distinguish Guzman do not persuade us. He argues that the superior court in this case did not find a "complete and unequivocal refusal to undergo drug treatment." But it did: it found that Williams had refused drug treatment for nearly a year, under circumstances in which he had absconded from supervision for just as long. The court didn't need to invoke the precise language of Guzman to make a finding that drug treatment had been "refused" within the meaning of Proposition 36. Williams also says his situation is different because he "reported to Probation, did some drug testing, communicated with his probation officer, and underwent drug treatment while he was incarcerated pending the parole revocation hearing." This distorts the record. He barely kept in touch with probation initially, was difficult if not impossible to contact, and eventually disappeared altogether for many months with a terrible record of skipping drug tests. The only evidence of his participation in so-called "drug treatment," moreover, is a self-serving statement to his probation officer while in custody, after the superior court had already made a finding he had refused drug treatment, that he had attended an "AA meeting" in jail. More to the point, all of these factual distinctions he seeks to draw amount to rearguing the weight of the evidence which is not the province of this court to do; they do not persuade us to adopt a different legal standard than was applied in Guzman. Williams also argues that Guzman and its progeny involved probation whereas the issue here is parole, which should be treated differently because a parolee has already served a prison sentence. He fails to explain why that matters, however, and it appears to us to be a distinction without a difference in this context.
That is quite different from the evidence in Castagne, where this court concluded the record as a whole was susceptible to conflicting factual inferences as to whether a defendant had refused drug treatment. (Castagne, supra, 166 Cal.App.4th at p. 736.) Among other evidence, there was a drug assessment report from an outside agency in that case reflecting the defendant had been participating for six weeks in a drug and alcohol program while in custody and had good attendance, and was moderately motivated for treatment. (See id. at p. 737.) And unlike here, the trial court did not make a finding the defendant had shown a refusal to undergo treatment but, on the contrary, indicated it believed she had sincere intentions to quit using drugs but that her good intentions had proved inadequate to prevent her initially from faltering. (Id. at p.735.) --------
Finally, we also see no inconsistency between the court concluding that Williams had refused drug treatment and then reinstating him on PRCS with the condition he undergo drug treatment. He had a drug problem, his probation officer testified he thought Williams would be amenable to treatment "as long as he's willing and able to show up for services," and Williams professed—only after having refused treatment, and only after having been found ineligible for Proposition 36 protection—to want to try treatment. It was not inconsistent or unreasonable in these circumstances for the state to commit additional resources to attempting to provide him with drug treatment, but this time on pain of incarceration if he failed.
DISPOSITION
The appealed order is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.