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P. v. Hayes

P. v. Hayes
02:17:2007

P

P. v. Hayes

Filed 1/9/07  P. v. Hayes CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ELGIE HAYES,

Defendant and Appellant.

      H029857

     (Monterey County

      Super. Ct. No. SS021628A)

            Defendant Elgie Hayes was sentenced to seven years in state prison on January 1, 2006, after the trial court found that he had violated his probation.  On appeal, defendant contends that there was insufficient evidence to support the finding that he violated his probation, and that the court's order revoking probation and sentencing him to state prison was an abuse of discretion.  We find that the trial court properly relied on hearsay evidence to find that defendant had violated his probation, and that the court did not abuse its discretion in ordering execution of the previously suspended seven-year sentence.  Therefore, we affirm the judgment.

BACKGROUND

            On May 31, 2002, defendant was charged by first amended complaint with sale or transportation of cocaine base (Health & Saf. Code, § 11352).[1]  The complaint further alleged that defendant had two prior section 11352 convictions (§ 11370.2, subd. (a)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).  On June 17, 2002, defendant entered a negotiated guilty plea to the new charges and admitted one prior section 11352 conviction.  On July 25, 2002, the court sentenced defendant to seven years in state prison, suspended execution of the sentence, and placed defendant on probation for five years, with various terms and conditions.  The probation conditions prohibited defendant from using or possessing controlled substances without a physician's prescription, required drug testing and participation in drug abuse counseling as ordered by the probation department, and required defendant to serve 365 days in county jail.

            On September 17, 2002, the court modified the probation order, allowing defendant to be placed in the two-year Delancy Street program.  Defendant successfully completed the program and was released on November 6, 2004.  The probation department filed a petition to modify the conditions of probation on January 4, 2005, alleging that defendant had tested positive for cocaine on November 30, and December  13 and 27, 2004.  On February 16, 2005, defendant admitted testing positive for cocaine on November 30 and December 13, 2004.  On May 26, 2005, the court reinstated probation, extending it for one year and adding a condition that defendant enroll in and successfully complete the Jericho Project program.  

            The probation department filed a petition to modify the conditions of probation on July 12, 2005, alleging that defendant had been terminated by the Jericho Project program on July 8, 2005, after being absent without leave for five hours.  Attached to the petition was a letter to the probation department signed by Chuck Etchison, the executive director of the Jericho Project, stating that defendant was terminated from the Jericho Project program after having unaccounted time of four hours.

            The probation violation hearing

            Joel Baxter, defendant's probation officer, testified that he received a confirmation letter dated July 1, 2005, from Etchison stating that defendant had entered the program on June 6, 2005.  Shortly thereafter, he received a letter from Etchison dated July 10, 2005, stating that defendant had been terminated from the program.  The letter states in relevant part:  â€





Description Defendant was sentenced to seven years in state prison on January 1, 2006, after the trial court found that he had violated his probation. On appeal, defendant contends that there was insufficient evidence to support the finding that he violated his probation, and that the court's order revoking probation and sentencing him to state prison was an abuse of discretion. Court find that the trial court properly relied on hearsay evidence to find that defendant had violated his probation, and that the court did not abuse its discretion in ordering execution of the previously suspended seven year sentence. Therefore, court affirm the judgment.
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