Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Nos. 07CM2325 and 07CM2706. Thomas DeSantos, Judge.
Barbara A. Smith, 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, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Hill, J.
Defendant William John Souza was granted probation in two cases after execution of his sentence of 10 years and eight months was stayed. He was found to have violated his probation and he was sentenced to prison. He appeals, claiming the trial court abused its discretion in imposing the stayed prison term. We disagree. In addition, we find he is not entitled to additional custody credits pursuant to Penal Code section 4019.
Facts and Procedural Background
In Kings County case No. 07CM2325 defendant was charged with transporting methamphetamine on July 14, 2007. In addition, it was alleged he suffered a prior drug conviction and had served several prior prison terms. In Kings County case No. 07CM2706 he was charged with conspiracy to commit perjury after he attempted to have a witness testify falsely regarding the ownership of the methamphetamine found on July 14, 2007.
Pursuant to a plea agreement, defendant pled guilty to transporting methamphetamine. He admitted he had suffered a prior drug conviction and had served three prior prison terms. He also pled guilty to conspiracy to commit perjury. As part of the plea agreement it was agreed that defendant would be sentenced to prison and then that sentence would be stayed and he would be placed on probation.
Defendant was sentenced on August 15, 2008, to the upper term of four years for his transportation of methamphetamine conviction. A three-year term was added for his prior drug conviction and three one-year sentences were also added for the prior prison term enhancements. For the perjury conviction he received a consecutive sentence of eight months (one third the midterm of two years), for a total term of 10 years and eight months. The court then stayed execution of sentence and placed defendant on probation for a period of five years.
The terms of defendant’s probation included that he refrain from the use of controlled substances without a medical prescription and that he submit to testing for the detection of controlled substances.
On January 26, 2009, a report of a violation of probation was filed. It was alleged that on December 26, 2008, defendant attempted to falsify his drug test by providing someone else’s urine. When confronted by the officer administering the test, defendant admitted to having recently used methamphetamine. In addition, it was alleged that defendant provided two positive drug tests in September and October of 2008. Attached to the probation officer’s violation of probation report were two laboratory reports regarding specimens collected on September 30, 2008 and August 29, 2008. The reports stated that defendant tested positive for methamphetamine on those two dates.
Also attached to the report of the probation officer were several letters from defendant stating that he is finally ready to admit, for the first time, that he is addicted to methamphetamine and that he is seeking treatment for his addiction. Letters from others supporting defendant’s drug treatment program and asking that he not be sent to prison were also filed with the court.
A contested violation of probation hearing was held on May 1, 2009. Kevin Corcoran, a parole agent, testified that on December 26, 2008, defendant came into the office for his drug testing. Corcoran was observing defendant while he was providing his urine sample. Corcoran noticed that defendant was fumbling a little bit, so Corcoran watched defendant more closely. Corcoran saw defendant manipulate his hand back into his pants with the bottle. When defendant came out from the test area, Corcoran patted him down. Defendant had an empty bottle in his pants, which indicated to Corcoran that the bottle of urine defendant had handed to him was not defendant’s urine.
Corcoran and defendant then talked about the test, and defendant admitted he brought someone else’s urine in to try to beat the test because he knew that he would test positive for methamphetamine. Defendant said he had smoked methamphetamine.
The court found that there was sufficient evidence to find that defendant violated the terms and conditions of his probation. On June 1, 2009, defendant was sentenced to prison for the previously stayed term of 10 years and eight months.
DISCUSSION
I. Probation Violation
“The burden of proof at a probation violation hearing is by a preponderance of the evidence.” (People v. Abrams (2007) 158 Cal.App.4th 396, 400.)
Defendant contends it was an abuse of discretion for the trial court to impose his stayed prison term and deny him a second chance at probation. Defendant claims his sole documented drug use was eight months (August 29, 2008) before the parole violation hearing. His admission of drug use in December was an effort to seek treatment. Thus, defendant argues that the insufficiency of proof of the extent of his drug use, combined with his sincere effort at obtaining treatment, requires reversal of the judgment.
Defendant attacks the probation officer’s report of defendant’s prior lapses into drug use, claiming the dates in the report are not correct and are unproven. We need not discuss this claimed defect because there was sufficient evidence presented at the hearing that proved a probation violation even in the absence of the report. At the hearing Corcoran testified that defendant attempted to thwart his testing requirements by providing urine from someone else instead of providing his own sample. When confronted, defendant admitted he had smoked methamphetamine. This testimony established that defendant violated two conditions of probation. First, he violated his condition of probation to submit to drug testing because he attempted to bypass testing by submitting another person’s urine. Second, he admitted he used methamphetamine in violation of his probation condition that he not ingest controlled substances. Whether he tested positive on previous occasions or not did nothing to undermine a finding by a preponderance of the evidence that he violated the terms of his probation.
Defendant objected at the hearing that his statement to Corcoran that defendant would test dirty if he submitted his own urine was inadmissible hearsay and/or inadmissible expert opinion because defendant was not an expert on drug testing. He argues this again on appeal. Defendant’s statement that he would test dirty was evidence that he had used methamphetamine, an admission he made to Corcoran when he was questioned. There was no error in considering this testimony, and any possible error was harmless because defendant admitted to using methamphetamine. His opinion about what a test would show did not alter his admission of use or alter his attempt to avoid testing by circumventing the collection of his own urine sample.
Finally, defendant argues it was an abuse of discretion to impose the stayed prison term because he was suffering from addiction, which is a disease, and had asked for an in-custody drug program in a desperate plea for help. He claims it is fundamentally unfair for him to not be given another chance at probation when his first probation revocation proceeding was instigated by his making an effort to seek treatment.
At the sentencing hearing in 2008, the court found numerous factors in aggravation, including defendant’s poor prior performance on probation and parole, his numerous convictions that were increasing in seriousness, and his active participation and professionalism. The court described defendant’s behavior in committing the crime of perjury as deplorable, despicable and disgusting.
At sentencing in June of 2009, the court noted that defendant had previously assured the court in 2008 that he was not going to have any problems, yet he continued to use drugs. It was only after he got caught that he understood what the consequence would be. The court stated defendant was given a “chance and chances again.” The court also noted that absent unusual circumstances defendant was not even eligible for probation and but for the plea agreement he would have gone to state prison initially.
The court clearly articulated voluminous reasons to support a finding that defendant did not deserve a second chance at probation.
II. Section 4019 Conduct Credits
The Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the defendant is arguably entitled to additional conduct credit under the amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment violates the intent of the Legislature and equal protection principles. We deem these contentions raised here.
That amendment is not presumed to operate retroactively and does not violate equal protection under law. Defendant is, therefore, not entitled to additional conduct credit under the amendment to section 4019. (People v. Rodriguez (2010) 183 Cal.App.4th 1.)
Disposition
The judgment is affirmed.