People v. Ferreira CA6 ( 2022 )

Filed 12/12/22 P. v. Ferreira CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049826
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 19CR008758)
v.
JOSE LUIS FERREIRA,
Defendant and Appellant.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, diverts
nonviolent drug offenders into community-based treatment programs as an alternative to
incarceration. “ ‘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.
[Citation.] 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. [Citation.] Only upon a third violation of a drug-related condition of
probation does an offender lose the benefit of Proposition 36’s directive for treatment
instead of incarceration. [Citation.] Upon such a violation, the court regains its
discretion to impose jail or prison time.’ ” (People v. Hazle (2007) 157 Cal.App.4th 567,
572-573 (Hazle); Pen. Code, § 1210.1, subd. (e)(3).1 )
Appellant Jose Luis Ferreira appeals the judgment revoking his Proposition 36
probation (§ 1210.1) and committing him to prison for a term of 32 months. The
Attorney General concedes that reversal is required because the record does not establish
that the second motion to revoke probation was served on Ferreira before he committed
the violations of probation alleged in the third motion to revoke probation. We accept the
concession and reverse.
I. BACKGROUND
Ferreira pleaded no contest to possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)) and admitted a prior strike conviction (§ 1170.12, subd. (c)(1)).
The trial court suspended imposition of sentence and granted Ferreira probation pursuant
to Proposition 36 for a period of three years.
A month later, on January 15, 2021, the probation department filed a petition to
revoke Ferreira’s probation on the ground that he had tested positive for
methamphetamine. When Ferreira failed to appear for arraignment on the revocation
petition, the trial court summarily revoked probation and issued a bench warrant.
On February 18, 2021, Ferreira appeared on the warrant, and the trial court
released Ferreira and continued the matter to March 17, 2021, for hearing on the
1 Unspecified statutory references are to the Penal Code. In 2006, the Legislature
adopted Senate Bill No. 1137 (2005-2006 Reg. Sess.), which amended section 1210.1.
(People v. Zeigler (2012) 211 Cal.App.4th 638, 647, fn. 2 (Zeigler).) In Gardner v.
Schwarzenegger (2009) 178 Cal.App.4th 1366, the amendments made to section 1210.1
by Senate Bill No. 1137 were deemed unconstitutional. “Although the amendments from
Senate Bill 1137 are invalid, they remain ‘on the books.’ ” (Zeigler, supra, at p. 647,
fn. 2.) We refer to the section 1210.1 and the subdivisions at issue by their original, pre-
amendment designations for consistency with relevant decisions before and after the
invalid amendments.
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“PC 1203.2 Petition filed January 15, 2021/VOP arraignment based on additional VOP
Petitions that will be filed.” That same day, the prosecutor filed a “notice of violation of
probation”—also to be heard March 17, 2021—alleging that Ferreira had failed to appear
for a January review hearing.
The following month, on March 8, 2021, the probation department filed another
petition for revocation of probation, alleging that Ferreira had tested positive for
methamphetamine on March 2 and 5, 2021, had failed to report as directed to the
probation department, and had failed to obey all laws as methamphetamine was found in
his mobile home following a probation search. On March 11, 2021, Ferreira was
arraigned on the March 8, 2021 petition and the failure to appear for the January 21, 2021
review hearing.
In October 2021, the date set for the formal revocation hearing, Ferreira admitted
the allegations in the first and second petition, and further admitted several of the
allegations in the third petition—that he used drugs on March 2 and 5, 2021, and that
methamphetamine had been found in his mobile home. The trial court terminated
Proposition 36 probation without making any findings as to Ferreira’s dangerousness or
amenability to treatment.
On February 9, 2022, the trial court denied Ferreira’s Romero2 motion and
sentenced him to the lower term of 16 months, doubled to 32 months due to his prior
strike.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
II. DISCUSSION 3
On appeal, Ferreira argues that the trial court lacked authority to sentence him to
prison on a revocation of Proposition 36 probation because the probation department had
filed only two revocation petitions, and because the court adjudicated his violations of
probation in a single consolidated revocation hearing. The Attorney General concedes
that reversal is required because there is insufficient evidence that Ferreira received
timely notice of the District Attorney’s February 18, 2021, notice of a probation
violation. Because we accept the concession and reverse on that ground, we need not
reach Ferreira’s further contentions.
Under section 1210.1, subdivision (e)(3), a threshold requirement for each
escalation of sanctions for nonviolent and drug-related probation violations is that the
state must successively move to revoke probation and serve the probationer with notice of
the motion. (Hazle, supra, 157 Cal.App.4th at pp. 574-575.) Appellate courts are
divided as to whether section 1210.1 entitles the probationer to three separate revocation
hearings before the trial court may revoke probation and sentence the probationer to jail
or prison. (Compare People v. Tanner (2005) 129 Cal.App.4th 223, 236 [“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”] with People v. Budwiser (2006) 140 Cal.App.4th 105, 109 [“it would be an
absurd waste of judicial resources to construe the statutes so as to require a separate
3 Although Ferreira did not object to the termination of his Proposition 36
probation on the grounds raised on appeal, he argues that the trial court imposed an
unauthorized sentence when it terminated Proposition 36 probation. (See People v. Scott
(1994) 9 Cal.4th 331, 354, fn .17.) Thus, he did not forfeit his claim despite failing to
raise them below, and we need not address his derivative claim of ineffective assistance
of counsel.
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hearing for each motion to revoke probation”]; Hazle, supra, 157 Cal.App.4th at p. 574
[“we do not believe three temporally distinct hearings are required”].) At a minimum,
however, it is not until after service of a second motion to revoke probation that a
probationer’s continued drug abuse forfeits the benefit of Proposition 36’s directive for
treatment in lieu of incarceration. (Hazle, supra, 157 Cal.App.4th at p. 576.) “That way,
the possibility or likelihood of losing Proposition 36 eligibility is brought home to [the
probationer], providing an incentive to stop the errant behavior.” (Ibid.)
Thus, in Hazle, supra, 157 Cal.App.4th 567, the Third District concluded that
reversal was required after the trial court terminated Proposition 36 after three motions to
revoke probation were filed because notice of one of the motions was not given before
the conduct underlying the subsequent motion occurred. (Id. at p. 577.) There, a first
probation violation petition alleged a drug-related violation, and a second, filed
May 20, 2005, alleged that the defendant had been terminated from his drug treatment
program due to non-compliance. (Id. at p. 570.) The third petition filed in Hazle,
however, alleged that the defendant had possessed alcohol on May 19, 2005—in other
words, “the facts supporting the third petition occurred before the second petition had
been filed, and perforce before it was served on defendant.” (Id. at p. 571.) Hazle
concluded reversal was appropriate because the defendant was “entitled to three distinct
periods of probation before he can be found ineligible.” (Id. at p. 577.)
As in Hazle, nothing in the record establishes that Ferreira was served with the
District Attorney’s February 18, 2021 notice of a probation violation before his drug use
and possession as alleged in the probation officer’s March 8, 2021 petition. The District
Attorney filed no proof of service, and the minute order of the February 18, 2021 hearing
indicates only that the case was continued for a hearing on the “PC 1203.2 Petition filed
January 15, 2021/VOP arraignment based on additional VOP Petitions that will be filed.”
The March 8, 2021 probation violation alleged several violations, including positive drug
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tests on March 2 and March 5, 2021. Yet it is unclear whether Ferreira received service
of the District Attorney’s February 18, 2021 notice before he committed the violations
alleged in the March 8, 2021 petition. (Hazle, supra, 157 Cal.App.4th at p. 577.)
In People v. Enriquez (2008) 160 Cal.App.4th 230, the Court of Appeal found that
two probation revocation petitions could not be treated as separately noticed motions
under section 1210.1 because the first petition was filed only a day before the conduct
underlying the second petition and there was nothing in the record to suggest that the
defendant received notice of the first petition before he committed the conduct alleged in
the second petition. (Id. at p. 242.) The record in this case suffers from the same defects
as Enriquez—it does not establish that the District Attorney served Ferreira with the
February 18, 2021 notice of violation before Ferreira’s March 2021 probation violations.
Accordingly, the trial court lacked a basis for treating Ferreira as a third-time violator
under section 1210.1, subdivision (e)(3)(C). (See Hazle, supra, 157 Cal.App.4th at
p. 577.) A defendant who has been served with and admitted the allegations of no more
than two drug-related probation revocation petitions is entitled under Proposition 36 to be
returned to probation unless he poses a danger to others or is unamenable to treatment,
and the record does not reflect that the trial court made any such findings at the
sentencing hearing. (§ 1210.1, subd. (e)(3)(B).) On the face of this record, then, the trial
court’s sentence was unauthorized. We must therefore reverse the judgment.
III. DISPOSITION
The judgment is reversed. On remand, the trial court shall reinstate Ferreira on
Proposition 36 probation unless the trial court finds that he poses a danger to the safety of
others or is unamenable to drug treatment. (§ 1210, subd. (e)(3)(B).)
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____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
People v. Ferreira
H049826