Filed 7/22/13 P. v. Ball CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048120

         v.                                                            (Super. Ct. No. R-00898)

JAMES KEVIN BALL,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Christopher J. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Affirmed.
                   James M. Crawford, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Defendant James Kevin Ball filed a notice of appeal. His appointed
counsel filed a brief summarizing the case, but advised this court he found no issues to
support an appeal. We gave Ball 30 days to file a written brief on his own behalf, but he
has not responded. After conducting an independent review of the record under People
v. Wende (1979) 25 Cal.3d 436, we affirm.
                                           FACTS
              The probation department filed a petition to revoke Ball’s probation under
the postrelease community supervision (PCS) program (Pen. Code, § 3455; all statutory
references are to the Penal Code unless otherwise noted). The petition alleged Ball had
been convicted of receiving stolen property (§ 496, subd. (a)) in October 2009 (Super Ct.
Orange County, 2009, No. 07WF2768) and sentenced to three years in prison. He
received his release to community supervision in February 2012. The petition alleged he
missed appointments with his probation officer on May 2, May 16, June 20, and August
21, 2012, tested positive for amphetamines on August 8, and failed to provide a valid
current address. On February 4, 2013, Huntington Beach Police arrested Ball, and found
him in possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and
drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)), which resulted in the
filing of a new criminal case (Super Ct. Orange County, 2013, No. 13WF0369).
              Ball pleaded guilty to nonviolent drug possession offenses in the new case,
which qualified him for a drug treatment program under Proposition 36. The court
placed Ball on probation and directed him to enroll in a program, but Ball still faced a
potential jail sentence on the allegation he violated his probation under the PCS program.
To forestall this, Ball filed a motion seeking drug treatment under Proposition 36 (§ 1210
et seq.) in lieu of PCS incarceration. He complained the Orange County courts had “as a
matter of practice . . . imposed a substantial term of incarceration in advance of
mandatory [Proposition 36] drug treatment” for persons on PCS, committing them to jail
for 90 days before release for treatment under Proposition 36. Ball asserted the “practice

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violates the spirit of [PCS] Realignment and of” Proposition 36. He argued persons on
PCS are similarly situated to parolees, who may not suffer a parole revocation for
committing a nonviolent drug possession offense under Proposition 36 (§ 3063.1). Ball
maintained “access to the drug treatment” ordered in the new case should not be
“thwarted by a pointless period in custody for a PCS violation based on the same
conduct.” (Italics added.)
              The trial court denied Ball’s motion, and he admitted the violation. The
court imposed a 90-day term with credit for 38 days of custody and conduct credit.
                                    POTENTIAL ISSUES
              Ball’s appellate lawyer identifies one potential issue for our consideration:
Whether it is a violation of Equal Protection “to deny a person on [PCS] . . . the same
opportunity to participate in Proposition 36 drug treatment (§ 1201 [sic 1210.1], subd.
(a)) as that afforded to nonviolent drug offenders (People v. Guzman (2005) 35 Cal.4th
577)?”
              Persons on PCS (see § 3451) must comply with various conditions while
under supervision, including the requirement to regularly report to supervising authorities
and to keep them informed of the probationer’s residence. (§ 3453 [obey all laws, follow
the directives and instructions of the supervising county agency, report to the supervising
county agency as directed by that agency, inform the supervising county agency of the
person’s place of residence, employment, education, or training, inform the supervising
county agency of any pending or anticipated changes in residence, employment,
education, or training].)
              Section 1210.1, added by Proposition 36, the Substance Abuse and Crime
Prevention Act of 2000, provides that “(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. As a condition of probation the court shall
require participation in and completion of an appropriate drug treatment program. The

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court shall impose appropriate drug testing as a condition of probation. The court may
also impose, as a condition of probation, participation in vocational training, family
counseling, literacy training and/or community service. A court may not impose
incarceration as an additional condition of probation. . . .” (Italics added.)
              Section 3063.1, also added by Proposition 36, provides, “(a)
Notwithstanding any other provision of law, and except as provided in subdivision (d),
parole may not be suspended or revoked for commission of a nonviolent drug possession
offense or for violating any drug-related condition of parole.” (Italics added.)
              In People v. Guzman (2005) 35 Cal.4th 577, the Supreme Court held
Proposition 36, which requires courts to order probation and community-based drug
treatment rather than incarceration for certain criminal offenders who commit nonviolent
drug possession offenses (NDPO’s), does not violate Equal Protection by failing to make
the probation requirement applicable to defendants who commit NDPO’s while on
probation for offenses that are not NDPO’s, even though the requirement does apply to
parolees who commit NDPO’s while on parole after completing prison terms for non-
NDPO’s. The court noted that probationers on probation for non-NDPO’s are not
similarly situated to parolees on parole for the same crimes because parolees have
“‘“served their time”’” in prison for the non-NDPO’s while probationers have not.
“[P]robationers who are still on probation have not completed the period of conditional
release that substitutes for the prison terms they otherwise would be serving.” (Id. at
p. 593.)
              Here, even if we agreed a person on PCS for a non-NDPO is similarly
situated to a parolee (both have “served their time” for the non-NDPO), we need not
address in this case whether Proposition 36’s prohibition of revocation and incarceration
applies to persons on PCS. Here, the petition alleged Ball violated several non-drug-
related conditions of PCS, including failing to report to his probation officer and failing
to provide a valid residence address. Section 3063.1, subdivision (a), provides only that

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“parole may not be suspended or revoked for commission of a nonviolent drug
possession offense or for violating any drug-related condition of parole.” (Italics added.)
Nothing in Proposition 36 precludes revocation of PCS and incarceration in jail for
violation of a condition that is not drug related.
              We discern no arguable issues from counsel’s brief or in our independent
review of the record.
                                        DISPOSITION
              The postjudgment order is affirmed.




                                                     ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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