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People v. Perez

California Court of Appeals, Fifth District
Mar 14, 2008
No. F052655 (Cal. Ct. App. Mar. 14, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. STEVE JOHN PEREZ, Defendant and Appellant. F052655 California Court of Appeal, Fifth District March 14, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge. Super. Ct. No. BF112679A

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.

Appellant, Steve John Perez, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and was placed on Proposition 36 probation. After the court found that Perez violated a non-drug-related condition of probation, the court sentenced him to a term of three years. On appeal, Perez contends the court erred in terminating his Proposition 36 probation and sentencing him to prison. We will affirm.

FACTS

On November 21, 2005, parole officers arrested Perez for being a parolee at large and found 1.73 grams of methamphetamine in Perez’s pants.

On December 6, 2005, Perez entered his plea and the court placed Perez on Proposition 36 probation for three years on certain terms and conditions. Condition No. 1 provided:

On June 19, 2006, Perez admitted violating his probation and the court reinstated probation on the previously ordered terms and conditions.

On December 15, 2006, Perez’s probation officer filed a declaration alleging Perez violated his probation by his failure to: 1) meet with the “mental health gatekeeper”; 2) test several times, 3) report in writing to his probation officer; and 4) instruct his probation officer of his current whereabouts.

Following a hearing on January 22, 2007, the court found the first three alleged violations true. It also concluded that Perez’s failure to report in writing was not drug related.

On March 20, 2007, the court denied Perez’s motion to dismiss his prior prison term enhancement and sentenced Perez to an aggregate three-year term, the midterm of two years on his possession of methamphetamine conviction and a one-year prior prison term enhancement.

DISCUSSION

Perez contends the prosecution had the burden of proving the condition of probation he violated was not drug-related. (See People v. Atwood (2003) 110 Cal.App.4th 805, 811-812.) He further contends his case is only superficially similar to People v. Dixon (2003) 113 Cal.App.4th 146, discussed infra, and that the People failed to meet their burden here because Perez’s probation officer is involved in overseeing his compliance with the terms of his probation and administers the Proposition 36 drug treatment program. We agree the People have the burden of proof on this issue but we will conclude that the record support’s the trial court’s implicit determination that the People met their burden here.

non-drug-related

“Section 1210.1, subdivision (f) provides: ‘The term “drug-related condition of probation” shall include a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.’” (People v. Dixon, supra, 113 Cal.App.4th 146, 151.)

The Dixon court found that a condition of probation requiring the defendant to report by mail was not a drug-related condition of probation. In so finding, the court stated,

Id

“[Moreover,] reporting to one’s probation officer may be a condition of probation for any number of reasons, none of which is necessarily drug-related.” (In re Taylor (2003) 105 Cal.App.4th 1394, 1398-1399.) “[S]uch appointments might be related to a probationer’s obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally.” (Id. at p. 1399, fn. 7.)

Here, Perez reporting condition was identical to the reporting condition in Dixon except that it specifically provided that Perez could submit his monthly written report in person. Thus, the Dixon court’s comments, that reporting by mail could not have involved a drug test and that nothing else about reporting by mail was peculiar to the Dixon defendant’s drug problems or drug treatment, apply equally to Perez’s reporting condition. Further, as noted by the Taylor court, reporting may be related to “any number of reasons, none of which are drug-related.” In accord with these authorities we reject Perez’s contention that the People did not meet their burden of showing that the reporting condition he violated was not drug-related. We also conclude that the trial court did not abuse its discretion when it terminated Perez’s Proposition 36 probation and sentenced him to prison.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Perez

California Court of Appeals, Fifth District
Mar 14, 2008
No. F052655 (Cal. Ct. App. Mar. 14, 2008)
Case details for

People v. Perez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVE JOHN PEREZ, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Mar 14, 2008

Citations

No. F052655 (Cal. Ct. App. Mar. 14, 2008)