Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC780277, CC776424
Premo, J.
Defendant Juan Antonio Maldonado, Jr., appeals from a sentence imposed after he was found in violation of the terms of his probation.
We appointed counsel to represent Maldonado in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Maldonado of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from Maldonado.
As Maldonado pleaded no contest, we derive the facts from the probation report and other documents in the record on appeal.
I. Factual and Procedural Background
A. Santa Clara County Superior Court Case No. CC776424
According to the probation officer’s report filed on January 25, 2008, San Jose police officers came across Maldonado on August 8, 2007, as he spray painted a shack where he lived with a P. Reyna, a person on searchable probation. The officers conducted a probation search of the shack and discovered a baggie containing an off-white colored rock presumed by the officers to be methamphetamine, multiple used hypodermic needles, a glass smoking pipe with white residue and a knife with metal knuckles attached to the handle. According to the report, Maldonado told the officers that all the above-described items belonged to him.
Maldonado was charged in a complaint filed August 10, 2007, with one count of unlawful possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a), count 1); one count of unlawful possession of controlled substance paraphernalia, a misdemeanor (id., § 11364, count 2); and one count of unlawful possession of metal knuckles, a misdemeanor (Pen. Code, § 12020, subd. (a)(1), count 3).
On December 26, 2007, Maldonado pleaded no contest to counts 1 and 3 and the superior court dismissed count 2 in the interests of justice. At sentencing, the court suspended imposition of sentence and placed Maldonado on four years formal probation on condition that he, among other things, serve 198 days in county jail, subject to an award of 198 days of presentence custody credits, and enter into a substance treatment program as directed by the probation officer. Maldonado was also directed to pay specified fines and fees.
B. Santa Clara County Superior Court Case No. CC780277
On September 16, 2007, San Jose police officers searched for Maldonado at his shack, pursuant to an arrest warrant. Maldonado, whom the officers saw run into the shack, allegedly failed to comply with the officers’ commands. He reached into his waistband and tossed a black pouch onto the roof through a hole, which pouch the officers retrieved after handcuffing him. The probation report, which is based on a police report, adds that the black pouch was found to contain 8.61 grams of methamphetamine. A search of Maldonado’s person revealed $378 in cash, and a search of the shack revealed an electronic scale. Maldonado was given a urine test, which came back positive for methamphetamine and amphetamine.
Maldonado was charged by complaint filed September 19, 2007, with one count of unlawful possession of methamphetamine for sale (Health & Saf. Code, § 11378); one misdemeanor count of using or being under the influence of a controlled substance (id., § 11550, subd. (a)); and one misdemeanor count of delaying, resisting or obstructing an officer (Pen. Code, § 148, subd. (a)(1)). The complaint further alleged that these offenses had been committed while Maldonado was out on bail in case No. CC776424 (id., § 12022.1, subd. (b)).
On December 26, 2007, Maldonado pleaded no contest to all counts and admitted the sentence enhancement. At sentencing, the court suspended imposition of Maldonado’s sentence of three years and four months and placed him on four years formal probation with the condition that he serve one year in county jail, subject to an award of 198 days of presentence custody credits. Successful completion of a 90-day inpatient treatment program followed by an outpatient treatment program of six months would be deemed to satisfy any remaining jail term. Maldonado was also directed to pay specified fines and fees.
C. Probation revocation
On June 5, 2008, the court revoked probation in both case Nos. CC776424 and CC780277, based on allegations that Maldonado: (1) had failed to enroll in or complete a substance abuse program; (2) committed violations of Penal Code section 666, a misdemeanor, and Penal Code section 242 or 243, subdivision (a), a misdemeanor; (3) failed to provide verification of current registration pursuant to Health and Safety Code section 11590; (4) failed to make himself available for search and testing; and (5) failed to provide verification of education, vocational training or employment.
At the contested hearing on the petition for modification of the terms of probation, Lisa Favorito, a deputy probation officer, testified that she reviewed the terms of probation with Maldonado. Maldonado told her he had completed approximately 30 days of inpatient drug treatment program between January 30, 2008 and February 28, 2008, at the Benny McKeown Center (Center) upon his release from county jail. He advised Favorito that his counselor at the Center referred him to an outpatient program and he had, by the time of the interview, completed three sessions at that outpatient program. Favorito also testified that Maldonado did not register with the San Jose Police Department pursuant to Health and Safety Code section 11590 nor did he report to probation upon his custodial release as directed.
Douglas Hames, a counselor at the Center, was called as a witness on Maldonado’s behalf. He testified that Maldonado performed well at the facility, served as an example to his peers and was elected peer group leader during his inpatient treatment. According to Hames, Maldonado was released after about 30 days because he accomplished his objectives within the program, and Hames was not aware that Maldonado was to receive 90 days of inpatient treatment pursuant to his probation conditions.
Maldonado took the stand and testified that he was confused when county officials placed him in a 30- to 45-day program despite the 90-day inpatient treatment probation condition. Upon completion of the 30-day inpatient program at the Center, he enrolled in the outpatient program at a facility on Lenzen Avenue in San Jose and attended three treatment classes before he was arrested for allegedly violating his probation in the instant cases. Maldonado also testified that he went to the probation department to ensure that he followed all the terms and conditions of the order of probation, but was not contacted by the probation department. He also stated that although he went to the San Jose Police Department to register pursuant to Health and Safety Code section 11590, he was told to return the following day at another location but did not do so. Maldonado admitted that he was arrested again on April 19, 2008, for allegedly stealing food at a Walmart.
The court found that Maldonado’s failure to comply with the order to complete a full 90 days of inpatient treatment was not willful because his placement in a 30-day program by county officials caused confusion. However, it further found that Maldonado willfully failed to comply with the order in three ways: (1) he engaged in further criminal conduct which caused his arrest and thus failed to complete the six-month outpatient program; (2) he failed to report to probation upon custodial release; and (3) he failed to register pursuant to Health and Safety Code section 11590. Accordingly the court found Maldonado to be in violation of the January 25, 2008 order granting him probation.
At the December 19, 2008 sentencing hearing, the court reinstated probation on the original terms and conditions, including the suspended sentence to prison confinement. It further ordered that Maldonado be released only into an inpatient treatment program where he would complete such treatment for a minimum of 30 days, but preferably 45 days. After completing the inpatient program, Maldonado was to complete a minimum of six months of intensive outpatient treatment followed by further treatment as directed by the probation department.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.