Filed 11/5/14 P. v. Chandler CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058225

v.                                                                       (Super.Ct.No. BAF1100733)

JON DEAN CHANDLER,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,

Judge. Affirmed.

         Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Jon Dean Chandler appeals from the trial court’s order of March 5,

2013, revoking his Proposition 36 probation and sentencing him to four years in prison.

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Defendant argues he should be reinstated on probation because: (1) the trial court did not

provide defendant with notice of and a hearing on the latest probation violation; (2) the

trial court did not afford defendant three separate grants of probation; (3) the trial court

based its decision on an erroneous misunderstanding that his prior strike made him

ineligible for Proposition 36 probation; and (4) in the alternative, defense counsel was

ineffective for failing to object to the court’s erroneous misunderstanding regarding the

effect of his prior strike on his eligibility for Proposition 36. As discussed below, we

conclude that defendant became ineligible for reinstatement of probation under

Proposition 36 because, under section 1210.1, subdivision (b)(4), he refused drug

treatment after being ordered to re-enroll following his failure to complete the first drug

treatment program.

                                  FACTS AND PROCEDURE

       On December 25, 2011, defendant was found with 1.5 grams of methamphetamine

in his pants pocket.

       On February 7, 2012, the People filed a second amended complaint alleging

defendant unlawfully possessed methamphetamine (Health & Saf. Code, §11377, subd.

(a)). The People also alleged defendant had a prior strike conviction for dissuading a

witness (Pen. Code, § 136.1, subd. (c)(1)).1 On March 13, 2012, defendant pled guilty

and admitted the strike prior. The trial court placed defendant on probation for three



       1   All section references are to the Penal Code unless otherwise indicated.



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years and ordered him to enroll in a substance abuse program under Proposition 36

(§ 1210.1).

       The minute order for April 17, 2012, states that the trial court revoked defendant’s

probation when he failed to appear for the scheduled substance abuse program enrollment

hearing. Retained defense counsel stated defendant had not been in contact. The court

issued a bench warrant for failure to appear and set bail at $50,000.

       The minute order for April 18, 2012, states that defendant was to be arraigned on

the bench warrant. The court recalled the bench warrant, reinstated defendant on

Proposition 36 probation, and ordered him to provide proof of enrollment in a substance

abuse program by April 24, 2012, and to return for all future hearing dates. The minute

order reflects that defendant “Remains released on Probation.”

       On April 25, 2012, defendant provided proof of enrollment in a Substance Abuse

Program.

       On August 31, 2012, the Probation Officer prepared a violation of probation

memorandum. The officer alleged defendant violated four conditions of his probation.

First, defendant was discharged from the Riverside County Substance Abuse Program on

July 17 after testing positive for drugs and failing to report to the program. Second,

defendant failed to provide proof that he had ever attended Narcotics Anonymous

meetings. Third, defendant failed to provide proof that he had registered with local law

enforcement under Health and Safety Code, section 11590. Fourth, defendant failed to

appear at a probation appointment scheduled for July 23. Notice of this violation was

mailed to defendant’s last known address.


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       On September 13, 2012, defendant was to be arraigned on his violation of

probation. On that date he tested positive for drugs.2 On defendant’s motion, the trial

court continued the hearing to September 24, ordered the bench warrant issued and held

to September 24, and set bail at $25,000. Defendant’s probation remained revoked.

       Defendant was not present at the September 24, 2012, hearing. The trial court

ordered the bench warrant released from the prior hold. Defendant’s probation remained

revoked.

       On October 12, 2012 defendant appeared in court on the bench warrant and

violation of probation arraignment. The hearing was continued to October 18, 2012.

Defendant’s bail was recalled, his probation remained revoked, he was remanded into

custody and bail was set at $50,000.

       On October 18, 2012, the hearing was continued to October 23.

       On October 23, 2012, defendant showed the court a letter dated October 22 stating

that he had been placed on a six-to-eight-month waiting list for a county-paid inpatient

Substance Abuse Program. Defendant’s probation remained revoked and the hearing was

continued to November 8. Bail was set at $30,000.

       On November 8, 2012, the trial court ordered defendant to drug test immediately.

The test was positive. The court set a Proposition 36 eligibility hearing for November 27,

2012. The court remanded defendant into custody and set bond at $75,000.



       2 In a separate case, defendant was convicted of being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)) on July 9, 2012.


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       On November 27, 2012, defendant waived his rights and admitted that he violated

probation by: (1) testing positive for drugs on September 13 and not enrolling in a

substance abuse program; and (2) was convicted on July 9, 2012 of being under the

influence. The trial court reinstated defendant in the Proposition 36 program and ordered

him to appear in court on December 27, 2012 to provide proof of enrollment in a

substance abuse program. Defendant accepted the terms of his probation and

“remain[ed] released on Probation.”

       On December 19, 2012, defendant tested positive for amphetamine, marijuana and

PCP. Also on that date a representative from the Riverside County Substance Abuse

Program told the court, “Client is unwilling or unable to remain abstinent and is unable or

unwilling to tell the truth. After some discussion client agrees that outpatient won’t be

the answer and the need to obtain inpatient treatment.”

       On December 27, 2012, defendant failed to appear to show proof that he had

enrolled in a substance abuse program. The trial court3 found defendant is not eligible

for the Proposition 36 program, issued a bench warrant for failure to appear, and set bail


       3  Throughout this matter, defendant appeared before either of two different
judges. Judge Jorge C. Hernandez presided over defendant’s February 21, 2012,
arraignment, March 13, 2012, plea hearing, September 13 and 24, 2012, violation of
probation (VOP) arraignment hearings, December 19, 2012, ex parte bond hearing,
February 1, 2013, VOP arraignment hearing, and March 5, 2013, sentencing hearing.
       Judge Samuel Diaz presided over the April 17, 2012, proof of enrollment hearing,
April 18, 2012, warrant arraignment, April 25, 2012, proof of enrollment hearing,
October 12, 18 and 23, and November 8, 2012, VOP arraignment hearings, November
27, 2012, Proposition 36 eligibility hearing, and the December 27, 2012, program
enrollment hearing at which he found defendant no longer eligible for Proposition 36 and
subject to mandatory state prison time.


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at $150,000. Defendant’s probation “remains revoked.” The court stated it was required

to increase the bail amount because “this is a mandatory state prison commitment.”

       On February 1, 2013, defendant was arraigned on his violation of parole, after

having been arrested. The trial court recalled the bench warrant. The People offered

defendant 32 months in prison. Over defendant’s strenuous objections, the court rejected

the offer. The court referred the matter to Probation for a sentencing memo, set the report

and sentence hearing for March 5, 2013, and ordered defendant to remain in custody

without bail.

       The probation report indicated that defendant stated he “stopped using meth but

used vicodin . . . I . . . didn’t want to shut my business down to go into residential

treatment for 45 days. I did check myself into The Ranch detox program4 for $300.00 to

get off meth.”

       At the report and sentencing hearing held on March 5, 2013, defendant waived

arraignment and requested immediate sentencing. The court sentenced defendant to four

years in state prison.

       This appeal followed.

                                        DISCUSSION

       As discussed below, we conclude that defendant’s four arguments are moot

because defendant made himself ineligible for probation under section 1210.1,


       4 Defendant told the probation officer that he checked into “The Ranch Recovery
Detox in 2012 for seven days,” but we cannot find any indication in the record that he
provided proof of this to the trial court.


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subdivision (b)(4), even though that was not the specific basis cited by the court at his

arraignment on this latest violation of parole.5 Specifically, defendant’s persistent refusal

over a period of five months to enroll and participate in a substance abuse program, after

failing at the first substance abuse program, constituted a refusal of treatment, and

therefore he became ineligible for probation.

       The trial court properly revoked defendant’s probation because his refusal to

undergo drug treatment made him ineligible for probation under section 1210.1,

subdivision (b)(4). Under Proposition 36, if a defendant is convicted of a nonviolent drug

possession offense, the trial court must grant probation and drug treatment, and may not

impose incarceration as a condition of probation. (§ 1210.1, subd. (a).) Proposition 36

gives offenders several chances at probation before permitting a court to impose jail time.

(In re Taylor (2003) 105 Cal.App.4th 1394, 1397.)

       The provisions giving offenders multiple chances at probation do not apply where

the defendant has refused drug treatment as a condition of probation. (§ 1210.1, subd.

(b)(4).) When a defendant makes no effort to comply with his or her drug treatment

probation, the defendant may be deemed to have refused treatment. (People v. Guzman

(2003) 109 Cal.App.4th 341, 349 (Guzman).) Failure to appear in court, failure to report

to the probation officer (except when reporting for a drug test), and failure to enroll in the


       5 We must affirm a court’s ruling if it is correct, even if we find it correctly based
on a reason alternative to that given by the lower court. “‘“‘“If right upon any theory of
the law applicable to the case, it must be sustained regardless of the considerations which
may have moved the trial court to its conclusion.” [Citation.]’ [Citation.]”’” (People v.
Jones (2012) 54 Cal.4th 1, 50.)


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court-ordered drug treatment program have been found to support a finding of

ineligibility for reinstatement of Proposition 36 probation on the ground the defendant

refused treatment. (People v. Johnson (2003) 114 Cal.App.4th 284, 303-304 (Johnson).)

       The facts that indicate defendant in effect refused drug treatment under the rule set

forth in Johnson, supra, 114 Cal.App.4th at page 284 are as follows. First, defendant

failed to appear in court on December 27, 2012. The court scheduled that appearance

date for the express purpose of allowing defendant to present proof that he had enrolled

in a substance abuse program. The court noted that “I informed Mr. Chandler if he failed

to appear today, he would no longer be eligible for Prop[osition] 36 pursuant to Penal

Code Section 1210.1.” The court refers to the hearing on November 27, 2012, at which

defendant admitted to violating his probation and was reinstated on the condition he

appear on December 27 to show proof of enrollment.

       Second, defendant failed to enroll in a court-ordered treatment program. Although

he did enroll in a program and provided proof to the court on April 25, 2012, the

Riverside County Substance Abuse Program indicated that defendant was discharged

from the program on July 17, 2012, for testing positive for drugs and failing to report to

the program. After that initial enrollment, defendant never again enrolled in a drug

treatment program.

       Defendant argues his failure to enroll in drug treatment after his initial discharge

in July of 2012 does not constitute “an outright refusal of drug treatment as contemplated

by section 1210.1, subsection (b)(4), or an implied refusal as described in Guzman and

Johnson, but instead is a case where appellant ‘commenced drug treatment and faltered,’”


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citing to Guzman, supra, 109 Cal.App.4th at pages 341, 349. We disagree. While

defendant did “commence” drug treatment in April 2012 and “faltered” three months

later in July, the court gave him five additional months, until December 2012, in which to

enroll in drug treatment. Defendant simply did not do so, despite numerous court

appearances6 and a direct order from the court on November 27, 2012, to provide proof

of enrollment by December 27. We find this to be an “‘abysmal probation record’ of

‘repeated and flagrant violations of probation’ [showing] that . . . he . . . has, ‘in effect,

refused[d] drug treatment as a condition of probation’ and ‘is thus ineligible for another

reinstatement of Proposition 36 probation.” (People v. Bauer (2011) 193 Cal.App.4th

396, 401.) For this reason, we affirm the trial court’s order revoking defendant’s

probation and sentencing him to prison.

                                              DISPOSITION

       The trial court’s order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                   RAMIREZ
                                                                                            P. J.


We concur:

KING
                            J.

CODRINGTON
                            J.

       6
      Defendant appeared in court on September 13, October 12 and 23, and
November 8 and 27, 2012


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