P. v. York CA2/1

Filed 5/15/13 P. v. York CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B243070
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. MA054566, BA347717)
v.
EMMETT WALTER YORK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Charlaine F. Olmedo, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
___________________________________
In October 1988, a juvenile petition was sustained finding that in March 1988
defendant Emmett York, birth date May 1970, had committed robbery (Pen. Code,
§ 211).1 Defendant was granted probation but seven months later was arrested for grand
theft from a person (former § 487.2, now § 487, subd. (c)), and was thereafter committed
to placement in a camp by the California Youth Authority.
In January 1991, defendant was convicted of vehicle theft (Veh. Code, § 10851,
subd. (a)) and was sentenced to 36 months probation.
In March 1992, defendant was convicted of petty theft (§ 666) and sentenced to
one year summary probation.
In December 1992, defendant was convicted of grand theft of cargo (§ 487h, subd.
(a)). He was sentenced to two years in prison, the sentence to run concurrent with a jail
term imposed for the January 1991 conviction.
On October 6, 1993, defendant escaped from prison (§ 4530, subd. (b)), a felony
for which, on January 7, 1994, he was convicted and sentenced to 16 months in prison,
the sentence to run consecutive to the sentence imposed for the December 1992
conviction. He was paroled before his prison term ended but violated parole in October
1995 and was returned to prison. Defendant was later paroled a second time but in
February 1997 again violated parole and was returned to prison.
In April 1998, defendant was convicted of first degree burglary (§ 459) and
sentenced to four years in prison. He was paroled immediately but within one month
violated parole and was returned to prison.
Defendant was paroled again but in October 1999 was convicted for second degree
burglary and sentenced to 16 months in prison, the sentence to run concurrent with the
sentence from the 1998 conviction.
In August 2001, defendant was convicted of second degree burglary, three counts
of credit card theft (§§ 484e, subd. (a); 484g, subd. (a)), and grand theft (§ 487, subd.
(a)). He was sentenced to six years in prison.
1 Undesignated statutory references are to the Penal Code.
2
In June 2007, defendant was convicted of petty theft (§ 487c) and sentenced to
198 days in jail. He was paroled before completing the sentence but in August 2007
violated parole and was returned to jail.
In the early morning of October 12, 2008, defendant was pulled over for driving in
a vehicle that had no rear license plate. When he informed the officers that he was on
parole, he was ordered to step out of the car, and it was searched. The officers recovered
eight baggies of marijuana from the compartment surrounding the vehicle’s gas cap.
Defendant told the officers, “Sir, with the money I make from selling weed I can’t even
afford to pay for the impound. My girlfriend doesn’t support me so I have to make a
living.” Defendant was arrested.
Defendant was charged with sale of marijuana (Health & Saf. Code, § 11360,
subd. (a)) and possession of marijuana for sale (id. at § 11359), both felonies, and it was
alleged he had been convicted in 1998 of first degree burglary, a strike pursuant to the
three strikes law, and had served five prior prison terms and failed to remain free of
prison for a period of five years subsequent to the conclusion of any of those terms
(§ 667.5, subd. (b)).2
Defendant initially pled not guilty and denied the special allegations, but later
changed his plea to no contest and admitted the allegations. In exchange, and over the
prosecution’s objection, the trial court dismissed the special allegations and sentenced
defendant to three years probation and diversion into a residential drug treatment
program. As part of the plea, defendant waived his right to a trial on both the charges and
special allegations and was informed that if he violated the terms of probation he could
be brought back to court and sent to prison without a trial. He was ordered to enter into a
drug treatment program, submit to periodic drug testing as requested by his probation
officer or the drug program, register as a drug offender (Health & Saf. Code, § 11590),
obey all laws and regulations of the probation department, pay certain fines and fees, and
2 Los Angeles Superior Court Case No. BA347717.
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not possess any controlled substance. Defendant stated he understood and accepted all
the terms and conditions of probation.
Twenty months later, on November 14, 2011, defendant was charged with
possession of cocaine base in violation of Health and Safety Code section 11350,
subdivision (a), a felony, and it was alleged he had suffered two prior strikes and served
four prior prison terms.3, 4 He pleaded guilty to the charge and admitted the special
allegations, and was sentenced to three years probation and diversion into a drug
treatment program pursuant to Proposition 36, the “Substance Abuse and Crime
Prevention Act of 2000,” codified in Penal Code sections 1210, 1210.1, and 3063.1 and
Health and Safety Code section 11999.4 et seq. (People v. Canty (2004) 32 Cal. 4th 1266,
1272–1273.) As part of his plea defendant waived the right to a jury trial and indicated
he understood that if he violated probation he could be sentenced to prison without trial
for up to 25 years to life. Defendant was ordered to submit to periodic drug tests, attend
Narcotics Anonymous meetings, register as a narcotics offender, pay various fines and
fees, keep the probation department apprised of his address, and obey all rules and
regulations of the court and probation department. He indicated he understood and
accepted the terms of his probation.5
After imposition of this sentence, defendant never reported to probation. In fact,
on January 23, 2012 the probation department reported defendant had not reported to the
department since September 2011. It also reported he was given a payment schedule in
October 2011, whereby he could pay the approximately $3,000 in fines and fees at a rate
of $10 per month, but never made any payments. A telephone message left by the
probation department went unreturned and a letter sent by the court was returned by the
post office with no forwarding address. On February 14, 2012, defendant failed to appear
3 Los Angeles Superior Court Case No. MA054566.
4 Defendant apparently had served only three prior prison terms, as the terms for the
1998 and 1999 burglaries were served concurrently.
5 The sentencing court was apparently unaware of LASC Case No. BA347717.
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in court as ordered in the returned letter. The court subsequently revoked his probation in
case No. BA347717 and issued a bench warrant for his arrest. Defendant was arrested on
the warrant on March 30, 2012.
On April 12, 2012, the probation department reported defendant had failed to
appear for 11 drug tests, failed to register as a narcotics offender, and tested positive for
drugs on several occasions. On April 20, 2012, the probation department reported
defendant had failed to complete any drug program or submit to drug testing.
On July 26, 2012, the trial court conducted a probation violation hearing.
Following evidence that defendant failed to report to his probation officer, pay his fines,
or complete a drug treatment program, the court revoked probation. It then sentenced
defendant to eight years in prison, comprising the two-year midterm on the 2011
possession charge, doubled under the three strikes law because of the 1998 robbery
conviction, plus one year for the 2008 possession charge (one-third the three-year middle
term), plus three consecutive one-year sentences for three prior prison terms. Defendant
was required to register as a narcotics offender, provide a DNA sample, and pay various
fines and fees, and was given 387 days service credit.
Defendant obtained no certificate of probable cause but filed a timely appeal. We
appointed counsel to represent him on appeal, and after examining the record counsel
filed an opening brief raising no issues and asking this court to review the record
independently.
On March 25, 2013, defendant filed his own appellate brief.
DISCUSSION
A. Defendant Was Not Granted Deferred Judgment Under Section 1000 or 1001
Defendant first contends he was improperly convicted and sentenced under
California’s deferred entry of judgment statutes, section 1000 et seq., and the state’s
misdemeanor diversion program, section 1001 et seq. He argues he was not required to
admit guilt in order to be granted deferred entry of judgment and diversion under these
programs, and after unsuccessful performance in them was entitled to a hearing under
section 1000.3 before sentencing.
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Defendant’s argument confuses three different diversion programs: pretrial
deferred entry of judgment under section 1000 et seq., misdemeanor diversion under
section 1001 et seq., and Proposition 36.
Under the deferred entry of judgment program, “an eligible defendant can enter a
plea of guilty, participate in a drug rehabilitation program and, upon completion of the
program, have the charges dismissed. (§§ 1000–1000.2.) ‘A defendant’s plea of guilty
pursuant to this chapter shall not constitute a conviction for any purpose unless a
judgment of guilt is entered pursuant to Section 1000.3.’ (§ 1000.1, subd. (d).)” (People
v. Laino (2004) 32 Cal. 4th 878, 896–897.) To be eligible for deferred entry of judgment,
a defendant must have been charged with a qualifying offense—violation of sections
11350, 11357, 11364, 11377, 11358 or 11550 of the Health and Safety Code or section
23222 of the Vehicle Code—and may have no “conviction for any offense involving
controlled substances prior to the alleged commission of the charged offense,” no record
indicating that “probation or parole has ever been revoked without thereafter being
completed,” and “no prior felony conviction within five years prior to the alleged
commission of the charged offense.” (§ 1000, subds. (a)(1), (a)(4), (a)(6).)
Defendant failed to qualify for deferred entry of judgment in either 2009 or 2011.
Regarding his 2009 conviction, defendant was not convicted of one of the drug offenses
specifically enumerated in section 1000. Instead, he was convicted for sale of marijuana
(Health & Saf. Code, §§ 11360, subd. (a)) and possession of marijuana for sale (Health &
Saf. Code, § 11359), which are not listed. Defendant was thus ineligible for pretrial drug
diversion under section 1000 in 2009. Regarding defendant’s 2011 conviction, defendant
was disqualified from drug diversion under section 1000 by his 2009 felony drug
convictions and record of probation and parole violations. Because the drug diversion
program described in section 1000 et seq. was unavailable, the sentencing procedure
described in section 1000.3, which is part of that program, was also unavailable, and the
trial court was not required to conduct a hearing before sentencing.
Under the misdemeanor diversion program set forth in section 1001 et seq., the
prosecution of a defendant charged with a misdemeanor may be postponed “either
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temporarily or permanently at any point in the judicial process from the point at which
the accused is charged until adjudication.” (§ 1001.1.) Section 1001.3 provides that a
defendant placed in a misdemeanor diversion program need make no admission of guilt
as a condition of placement. But here, defendant did not qualify for misdemeanor
diversion because he was charged only with felonies in 2009 and 2011. Section 1001.3
therefore did not apply.
B. Probation was Properly Revoked Under Proposition 36
Defendant was granted drug diversion probation under Proposition 36, which is
analogous to the deferred entry of judgment statutes in some ways but not identical.
(People v. Canty, supra, 32 Cal.4th at p. 1285.) The issue is whether probation could be
revoked and sentence imposed once he violated the conditions of probation.
“Following the enactment of Proposition 36, . . . a defendant who has been
convicted of a ‘nonviolent drug possession offense’ must receive probation and diversion
into a drug treatment program, and may not be sentenced to incarceration as an additional
term of probation.” (People v. Canty, supra, 32 Cal.4th at pp. 1272–1273.) “As a
condition of probation the court shall require participation in and completion of an
appropriate drug treatment program. The court shall impose appropriate drug testing as a
condition of probation. . . . Probation shall be imposed by suspending the imposition of
sentence.” (§ 1210.1, subd. (a).) The court may revoke Proposition 36 probation if the
defendant “violat[es] a non-drug-related condition of probation.” (§ 1210.1, subd. (f)(2).)
“If probation is revoked . . . , the defendant may be incarcerated pursuant to otherwise
applicable law . . . .” (§ 1210.1, subd. (f)(1).)
“Anticipating that drug abusers often initially falter in their recovery, Proposition
36 gives offenders several chances at probation before permitting a court to impose jail
time. The first time an offender violates a drug-related condition of probation, he is
entitled to be returned to probation unless he poses a danger to others. (§ 1210.1,
subd. (e)(3)(D).) The second time he violates a drug-related condition of probation, he is
entitled to be returned to probation unless he poses a danger to others or is unamenable to
treatment. (§ 1210.1, subd. (e)(3)(E).) Only upon a third violation of a drug-related
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condition of probation does an offender lose the benefit of Proposition 36’s directive for
treatment instead of incarceration. (§ 1210.1, subd. (e)(3)(F).) Upon such a violation, the
court regains its discretion to impose jail or prison time. [Citation.] Proposition 36 does
not, however, extend the same grace to probationers who violate non-drug-related
conditions of probation. The first time a probationer violates such a condition, the court
has discretion to incarcerate the person. (§ 1210.1, subd. (e)(2).)” (In re Taylor (2003)
105 Cal. App. 4th 1394, 1397–1398, fns. omitted.)
Here, defendant violated several non-drug-related conditions of probation. He
failed to meet with his probation officer from October 2011 through January 2012, failed
to keep the probation department apprised of his address, failed to pay down his financial
obligation, and failed to appear in court as ordered. The court therefore had discretion to
revoke probation and incarcerate defendant “pursuant to otherwise applicable law.”
(§ 1210.1, subd. (f)(1).)
C. The Sentence Imposed was Proper
When probation is revoked the court may impose the sentence that was suspended
in order to grant probation in the first place. (§ 1203.2, subd. (c) [“Upon any revocation
and termination of probation the court may, if the sentence has been suspended,
pronounce judgment for any time within the longest period for which the person might
have been sentenced”].) Here, the trial court was expressly authorized by subdivision (c)
of section 1203.2 to impose sentence on defendant’s 2009 and 2011 convictions after
revoking probation.
Defendant argues the trial court was without discretion to sentence him to eight
years in prison simply for failing to appear in court on February 14, 2012. The argument
is without merit because defendant received eight years due to his convictions and
recidivism, not his failure to appear. The consequence of his failure to appear was only
that Proposition 36 probation was revoked.
Defendant argues the sentence was illegal in that the trial court was without
discretion to add three consecutive one-year terms for his three prior prison terms
because he had stayed free of custody for five years. On the contrary, the court was
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required by statute to impose the three enhancements. Section 667.5, subdivision (b),
provides that “where the new offense is any felony for which a prison sentence . . . is
imposed . . . , in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term . . . ; provided that no
additional term shall be imposed under this subdivision for any prison term . . . prior to a
period of five years in which the defendant remained free of both the commission of an
offense which results in a felony conviction, and prison custody . . . .”
Here, the trial court added three consecutive one-year enhancements to
defendant’s sentence for the prison terms he served for convictions for grand theft in
1992 (two years), escape in January 1994 (16 months), burglary in 1998 and 1999 (four
years and 16 months respectively, concurrent), and burglary and other counts in 2001 (six
years). To obtain probation, defendant admitted he had served those terms and also
admitted that at no time between 1992 and 2009 was he free of prison custody for a
period of five years subsequent to the conclusion of those prior terms.
D. Defendant Received Effective Assistance of Counsel
Finally, defendant contends he received ineffective assistance of counsel on appeal
because his appellate counsel raised no issues in the appellate brief. We disagree.
Defendant’s no contest and guilty pleas limit the potential scope of his appeal to
“constitutional, jurisdictional, or other grounds going to the legality of the proceedings”
and “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.”
(Pen. Code, § 1237.5, subd. (a); Cal. Rules of Court, rule 8.304(b)(4)(B).) We have
examined the entire record and have found that no arguable issues of any sort exist, let
alone issues cognizable without a certificate of probable cause. We are thus satisfied that
defendant’s appointed counsel has fully complied with the responsibilities set forth in
People v. Kelly (2006) 40 Cal. 4th 106, 109-110 and People v. Wende (1979) 25 Cal. 3d
436, 441.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
JOHNSON, J.
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