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People v. Hackett

California Court of Appeals, Fifth District
Apr 15, 2009
No. F056511 (Cal. Ct. App. Apr. 15, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. F079078899, Mary Dolas, Judge.

Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

THE COURT

Before Cornell, Acting P.J., Gomes, J., and Kane, J.

Appellant Eric Lee Hackett appeals from the trial court’s revocation of his Proposition 36 probation (Pen. Code, § 1210.1) for failing to enroll in a treatment program and to submit to drug testing. Without raising any issues on appeal, Hackett asks this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436.

The Fresno County District Attorney charged Hackett with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and misdemeanor possession of narcotics-related paraphernalia (Health & Saf. Code, § 11364). The complaint also alleged Hackett had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).)

On December 7, 2007, Hackett pled guilty to the felony methamphetamine possession charge and admitted the three prison term enhancements. The trial court dismissed the remaining charges and suspended imposition of judgment and sentence for a period of two years while placing him on formal probation under the Proposition 36 program. The court also imposed and credited Hackett with 28 days for time already served in jail and ordered he pay a $20 court security fee, a $200 restitution fund fine, a $200 probation revocation fine that was stayed, and a $50 criminal lab fee.

The following day Hackett filed a hand-written document entitled “Affidavit: For the Record. PC 1237.” This court later granted Hackett’s request to construe the document as a notice of appeal, invited counsel to respond, and conducted an independent review of the record. After not finding any arguable legal issues, we affirmed the judgment. (People v. Hackett (Oct. 17, 2008, F054537 [non-pub. opn.].)

Meanwhile, on February 26, 2008, Hackett waived his right to a probation hearing after admitting he failed to participate in drug testing. Finding this a first violation of probation, the trial court ordered Proposition 36 probation reinstated and ordered he participate in a drug program, test weekly, and appear at the next hearing.

Despite the court order, Hackett failed to appear at his next review hearing on April 15, 2008. The trial court revoked his probation and issued a bench warrant for his arrest.

At an April 21, 2008, hearing, Hackett waived his right to a probation hearing and admitted violating probation for failing to drug test. The court found a second violation of probation, reinstated probation, and ordered Hackett to participate in a weekly drug test program. The trial court warned Hackett that under his plea, he would be sentenced to prison if he failed to comply with the Proposition 36 terms of probation. Hackett acknowledged he understood.

Hackett failed to appear at his next review hearing on June 2, 2008. The trial court again revoked his probation and issued a bench warrant for his arrest. On September 4, 2008, Hackett denied violating probation and set the matter for a contested hearing, but a few days later he admitted he did not enroll in drug treatment or submit to testing as ordered. The court found three probation violations and terminated Hackett’s Proposition 36 probation as no longer eligible.

On October 25, 2008, Hackett moved to vacate the judgment and to withdraw his plea on the grounds he had not been informed that his Proposition 36 treatment would be terminated upon three violations, that the court failed to acknowledge his valid excuses for complying, and that he never agreed to a two-year prison term. The trial court denied Hackett’s motion to withdraw his plea and sentenced him to a two-year prison term for possession of methamphetamine and struck the prior prison term enhancements. The court also reaffirmed the fines and fees imposed in December 2007.

Hackett timely filed a handwritten “Notice of Appeal on Sentence” on November 7, 2008. On February 13, 2009, this court received an opening brief from Hackett’s appointed appellate counsel requesting an independent review of the record and forwarding Hackett’s request that this court address whether the trial court erroneously failed to reinstate him on Proposition 36 probation and whether the trial court erred in refusing to set aside his plea. Both appellate counsel and this court invited Hackett to submit additional briefing regarding his appeal, but he did not respond. After conducting our own independent review of the record, we find no reasonably arguable legal or factual issues. (People v. Johnson (1981) 123 Cal.App.3d 106, 109-110.)

The judgment is affirmed.


Summaries of

People v. Hackett

California Court of Appeals, Fifth District
Apr 15, 2009
No. F056511 (Cal. Ct. App. Apr. 15, 2009)
Case details for

People v. Hackett

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC LEE HACKETT, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Apr 15, 2009

Citations

No. F056511 (Cal. Ct. App. Apr. 15, 2009)