Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC123387
Haerle, J.
I. INTRODUCTION
Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellant appeals from a trial court order revoking his probation as requested in three separate petitions filed in that court. He asks this court to examine the record of the proceeding in which the revocation occurred and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the order revoking appellant’s probation.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2002, pursuant to a negotiated disposition, appellant pled guilty to one felony count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and also admitted to a special allegation of two prior convictions for possession of that drug. (Pen. Code, § 1203, subd. (e)(4).) When he was sentenced the following year, the court imposed the upper term of three years in prison, but then suspended execution of that sentence and placed appellant on probation for five years. The conditions of probation included obeying the law, reporting to the probation department as directed, not possessing non-prescribed or illegal drugs, participation in a residential drug treatment program, and total abstinence from use of alcohol.
During the years 2003-2005, three separate petitions were filed by appellant’s probation officer alleging, variously, failure to appear for a scheduled appointment, a positive test for methamphetamine in his system, failure to report regularly to his probation officer, etc. The trial court accepted appellant’s admission of one violation, dismissed another in view of that admission, and found no willful violation of probation conditions regarding the third. It reinstated probation all three times, but imposed additional conditions of probation.
In January and April 2007, four additional probation revocation petitions were filed. The first, filed January 8, was by the Marin County District Attorney, and alleged a violation of probation on the basis of appellant’s possession of 28.5 grams or less of marijuana. The second, filed by appellant’s probation officer on January 26, alleged that appellant had failed to contact the probation department for five months, failed to provide proof of the completion of treatment, and had a positive test for methamphetamine. The third, filed January 31, was by the district attorney and alleged a violation of probation based upon appellant’s possession of a switchblade knife in a motor vehicle. The fourth and final one was filed on April 12 and alleged, again, failure to report to the probation department and a positive test for methamphetamine.
All further dates noted are in 2007.
On May 23, a contested hearing began but was then cancelled when appellant agreed to admit the allegations of the last three of these four petitions if the court would reinstate probation. On May 25, the court sustained these three petitions but reinstated probation. In the course of this process, the district attorney’s office withdrew its January 8 petition.
On June 29, the court granted appellant’s motion to withdraw his admissions to the three petitions previously sustained by the court, and set a contested hearing for August 13.
At that hearing, two probation officers assigned to appellant and a Novato police officer testified for the prosecution and two witnesses testified for appellant. The first prosecution witness was appellant’s current probation officer, one Darnell Roary. He testified to appellant’s repeated failures to report to the probation office in 2007, and also concerning appellant’s explanation regarding the knife found in his truck.
Appellant’s first probation officer, Matt Murphy, testified to appellant’s earlier failures to report to the probation department, and also regarding appellant’s testing positive for methamphetamine in 2007.
The last prosecution witness, Officer Tiara DeBernardi of the Novato Police Department, testified regarding the finding of the “butterfly knife” in appellant’s truck in January 2007, and identified the knife in court. She told the court that appellant had told her and another officer that he was not aware the knife was in his truck.
Appellant called a co-worker, Rodney Vaughn, who testified that he had seen appellant use a knife similar to the “butterfly knife” admitted into evidence to cut twine in connection with his work on trees. Dr. Ray Seet testified that he had, in 2006, prescribed the drug Didrex to appellant for appetite suppressant and weight control purposes, and that this drug might cause positive test results for both methamphetamine and amphetamine.
At a continued hearing on August 24, the court sustained (1) the petition of January 26 as to its allegation of failure to report, but not as to the failure to provide proof of compliance with the residential treatment program condition, (2) the petition of January 31 as to appellant’s improper possession of a knife in a motor vehicle, and (3) the petition of April 12 as to appellant’s positive test for methamphetamine and failure to report to the probation department.
At a sentencing hearing on October 17, the court revoked and terminated appellant’s probation, recalled the upper term sentence imposed in 2003 and, instead, sentenced appellant to the midterm of two years in state prison. Appellant was given 541 days of pre-sentence credit.
Appellant filed a notice of appeal two days later.
III. DISCUSSION
At the August 13 probation revocation hearing, appellant was ably represented by counsel, a deputy public defender, who cross-examined all three of the prosecution’s witnesses and, at the conclusion of the hearing, made a credible argument to the court as to why appellant’s probation should be reinstated.
At the conclusion of the August 13 hearing, the court asked counsel to discuss the petitions before it sequentially, and asked those counsel several questions regarding their contentions. It then indicated it wanted to consider the petitions and the evidence further before ruling.
When it did rule at the continued hearing on August 24, it sustained most of the allegations of the three petitions before it, but not all. Then, in sentencing appellant on October 17, the court heard further argument from counsel and comments from the Marin County probation department as to the sentence it should impose before sentencing appellant as it did, i.e., withdrawing the upper term and sentencing him to the midterm and revoking his probation.
The record strongly suggests both that appellant received a fair hearing in the lower court and was ably represented throughout. It also reveals no issues deserving of further briefing and consideration by this court.
IV. DISPOSITION
The order revoking appellant’s probation and the sentence imposed on him are both affirmed.
We concur: Kline, P.J., Lambden, J.