From Casetext: Smarter Legal Research

People v. George

California Court of Appeals, First District, Fifth Division
Apr 29, 2009
No. A123471 (Cal. Ct. App. Apr. 29, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SCOTT EUGENE GEORGE, Defendant and Appellant. A123471 California Court of Appeal, First District, Fifth Division April 29, 2009

NOT TO BE PUBLISHED

Solano County, Super. Ct. No. FCR236977

SIMONS, Acting P.J.

The trial court found defendant Scott Eugene George violated probation; the court revoked probation and then reinstated probation for an additional three years, along with a 120-day jail term. Defendant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Defendant has not filed a supplementary brief. We find no arguable issues and affirm.

BACKGROUND

In January 2007, defendant pled no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The trial court entered defendant into a deferred entry of judgment (DEJ) program. In May 2008, defendant admitted he violated the terms of the program; the court terminated DEJ, suspended imposition of sentence, and placed defendant on Proposition 36 (Prop 36) probation (Pen. Code, § 1210.1) for three years.

In July 2008, defendant admitted testing positive for narcotics, missing meetings, and missing drug tests. The court deemed his admission a first drug-related violation of his Prop 36 probation. On August 15, 2008, defendant admitted again testing positive for narcotics, missing meetings, and missing drug tests. The court deemed his admission a second drug-related violation of his Prop 36 probation. Defendant failed to appear in court on August 29, 2008. The probation department informed the court that defendant had tested positive for morphine on August 22.

At an October 2008 probation violation hearing, the People alleged that defendant violated a drug-related condition of probation by testing positive for a controlled substance on August 22 and that defendant violated a non-drug-related condition of probation by failing to appear on August 29. Defendant did not contest the failure to appear. A counselor from an outpatient drug and alcohol clinic testified that on August 22 he watched defendant produce a urine sample that was shipped to Redwood Toxicology for analysis. Redwood Toxicology sent back a form indicating that defendant’s sample had tested positive for opiates. Defendant denied using any opiates after incurring his second drug-related probation violation on August 15.

The trial court found true the drug-related probation condition violation and revoked the Prop 36 probation. At a December 2008 sentencing hearing, the court reinstated probation and extended it for three years. The court also imposed a 120-day jail term, as a condition of probation.

DISCUSSION

We have reviewed the record and have found no arguable appellate issues.

Defendant was represented by legal counsel throughout the proceedings, and there is no indication in the record that counsel was ineffective.

The trial court found that defendant committed three drug-related violations of his Prop 36 probation by testing positive for controlled substances and missing drug tests, which rendered him presumptively ineligible for continuation of Prop 36 probation (Pen. Code, § 1210.1). The third violation is at issue in this appeal. Trial courts have “very broad discretion in determining whether a probationer has violated probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The material facts in a probation revocation hearing need only be proven by the preponderance of the evidence. (Id. at p. 447.) Here, admission of the results of the urine test was proper (People v. Brown (1989) 215 Cal.App.3d 452, 455-456); the evidence supports the trial court’s findings. It was also proper for the trial court to reinstate probation and extend it for three years with a jail term condition.

Appellate counsel advised defendant of his right to file a supplementary brief to bring to the court’s attention any issue he believed deserved review. (People v. Kelly (2006) 40 Cal.4th 106.) Defendant did not file a supplementary brief. There are no legal issues that require further briefing.

DISPOSITION

The judgment is affirmed.

We concur. NEEDHAM, J., BRUINIERS, J.

Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. George

California Court of Appeals, First District, Fifth Division
Apr 29, 2009
No. A123471 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. George

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SCOTT EUGENE GEORGE, Defendant…

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 29, 2009

Citations

No. A123471 (Cal. Ct. App. Apr. 29, 2009)