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People v. Goldberg1/31/2003
CERTIFIED FOR PUBLICATION
Christopher John Goldberg (Goldberg) appeals from a sentence imposed after he violated the terms of his probation. He contends the trial court erred by refusing to reinstate his probation pursuant to Penal Code section 1210.1, subdivision (e)(3)(D). We disagree and affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In January 1995, Goldberg was charged with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); transportation of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (b)); possession of diazepam (Health & Saf. Code, § 11377, subd. (a)); possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364); driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); and being unlicensed to drive the type of vehicle he was driving (Veh. Code, § 12500, subd. (b)). The complaint was later amended to charge a prior conviction for driving under the influence (Veh. Code, § 23152, subd. (b)).
In May 1995, Goldberg pled no contest to count 1 (transporting methamphetamine) and count 5 (driving under the influence of a controlled substance). The remaining counts were dismissed. The stipulated facts supporting the no contest plea to count 1 were that Goldberg "drove with methamphetamine in a car."
The court suspended imposition of sentence and ordered Goldberg placed on formal probation for three years with certain terms and conditions, including that he serve 90 days in county jail, report to and comply with all orders of his probation officer, and abstain from the use of alcohol and illegal drugs.
On January 26, 1996, Goldberg's probation was summarily revoked after he twice tested positive for methamphetamine in December 1995 and January 1996, in violation of the terms of his probation. A warrant was issued for his arrest.
Over five years later, Goldberg was arraigned on the arrest warrant. In August 2001, he admitted he had violated the terms of his probation by testing positive for methamphetamine and failing to report to his probation officer.
According to the probation report, Goldberg was aware of the arrest warrant and admitted he had no excuse for not turning himself in. He conceded he had consumed alcohol approximately twice a month and used illegal drugs, but denied having a substance abuse problem. The probation department concluded Goldberg was not an appropriate candidate for a continued grant of probation, due to his "highly questionable" motivation to comply with probation, denial of any alcohol or drug problem, and his five-year stint on warrant status.
Goldberg maintained his probation should nevertheless be reinstated based on Penal Code section 1210.1, subdivision (e)(3)(D). As discussed post, that subdivision dictates whether probation should be revoked upon violation of a drug-related condition of probation, where the defendant was on probation for a nonviolent drug possession offense on the effective date of the Substance Abuse and Crime Prevention Act of 2000. (See § 1210.1.) The trial court ruled that Goldberg was not eligible for treatment under section 1210.1, because he had suffered a conviction for a misdemeanor unrelated to the use of drugs (driving under the influence of a controlled substance) in the same proceeding as his conviction for the nonviolent drug possession offense. (See § 1210.1, subd. (b).)
Goldberg was sentenced to state prison for the low term of two years on count 1, and a concurrent six-month sentence as to c
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