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People v. Wold1/7/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Susan Aileen Wold appeals from her conviction for possession of methamphetamine and driving under the influence of a controlled substance. She contends the trial court erred in finding her ineligible for probation and treatment pursuant to the statutes created by Proposition 36, which mandates probation without incarceration for specified drug offenses. (Pen. Code, §§ 1210, 1210.1; further statutory references are to the Penal Code, unless otherwise indicated.) The trial court concluded that these statutes do not apply to the misdemeanor offense of driving under the influence, because it does not "involve" the "simple possession or use of drugs." We agree and affirm.
Background
Appellant entered a guilty plea early in the proceedings, and the facts relevant to our discussion are taken from the preliminary hearing transcript and the probation officer's report. Clearlake Police Officer Timothy Fassler observed appellant driving 73 miles per hour in a 55 mile per hour zone and watched as she continued at high speed into a 50 mile per hour zone. After he pulled her over, he noticed that appellant showed "signs of being under the influence of a controlled substance." Specifically, Fassler noticed that appellant had "retracted eyelids, rapid speech, pupils that remained fixed at about 3.5 millimeters, little reaction to direct light stimuli and . . . ridged facial tone." After learning that appellant was in violation of her parole, Fassler conducted a parole search, and found .2 grams of methamphetamine in a small plastic bag in the car's glove compartment. He arrested appellant, who admitted the drugs were hers. She also admitted using methamphetamine during the two days before she was arrested.
Appellant pled guilty to one felony count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and to another count charging misdemeanor driving under the influence of a controlled substance. (Veh. Code, § 23152, subd. (a).) Appellant also admitted having served a prior prison term within the meaning of section 667.5 subdivision (b). Two other prior prison term allegations were dismissed, pursuant to section 1385.
Appellant moved for an order to establish her eligibility for treatment pursuant to section 1210.1, and the trial court found she was ineligible for drug treatment under the codified provisions of Proposition 36. (§§ 1210, subd. (d), 1210.1.) The court denied probation and sentenced appellant to the midterm of two years imprisonment for felony possession of methamphetamine and to a concurrent term of 180 days for the misdemeanor of driving under the influence of a controlled substance.
Appellant filed this timely appeal, and contends that she should have been eligible for drug treatment and sentenced accordingly.
Discussion
Proposition 36 "effected a change in the sentencing law so that a defendant convicted of a nonviolent drug possession offense is generally sentenced to probation, instead of state prison or county jail, with the condition of completion of a drug treatment program. The declared purpose of Proposition 36 is to `divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses.' (Prop. 36, § 3.)" (In re
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