People v. Ferreira CA6

Filed 12/12/22 P. v. Ferreira CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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