P. v. Kelly
Filed 10/1/07 P. v. Kelly CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JACQUELINE MICHELLE KELLY, Defendant and Appellant. | A117240 (Sonoma County Super. Ct. No. SCR - 501884) |
Jacqueline Michelle Kelly appeals the sentence imposed on her pursuant to Penal Code section 1210 et seq.,[1]following three admitted probation revocations. Her court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTS AND PROCEEDINGS BELOW
On December 27, 2006, a complaint was filed charging appellant with a single count of possessing a controlled substance, heroin. (Health & Saf. Code, 11350, subd. (a).) Two days later, while represented by counsel and after written waivers of rights, including the right to a preliminary hearing, appellant entered a plea of guilty to the charge. The court advised appellant that the maximum punishment she could receive under her plea would be three years in state prison. However, in consideration of the nonviolent nature of her offense, it was agreed appellant would receive what the court and counsel referred to as section 1210 probation. Section 1210which was enacted by Proposition 36, an initiative measure adopted by the voters in November 2000is known as the Substance Abuse and Crime Prevention Act of 2000, or SACPA. SACPA provides that [n]otwithstanding any other provision of law, and with specified exceptions, any person convicted of a nonviolent drug possession offense shall receive probation. ( 1210.1) Imposition on appellant of a state prison sentence was suspended, and she was placed on section 1210 probation pursuant to numerous conditions, including the condition that she [r]eport to intake appointment on 1.3.07 at 10 a.m. at the SACPA Office.
On January 16, 2007, after appellant failed to appear at the SACPA office, a no-bail warrant for contempt of court on felony issued stating that appellants probation had been summarily revoked. The next day, after appellant admitted the violation, the court declined to revoke probation but ordered her to report to the SACPA intake office the following day and also to attend Wednesday meetings at the Orenda Center, a substance abuse program run by the Sonoma County Department of Health Services,[2]and daily meetings of Narcotics Anonymous.
Eight days later, on January 25, appellant again admitted she had violated probation for failing for a second time to timely show up for the SACPA intake appointment. Nevertheless, probation was again reinstated and the court ordered appellant to report to the intake office on January 26, the next day.
On February 21, 2007, after being charged with a third violation of the condition requiring her to report to intake at the SACPA office, and after being informed by the court of her right to a hearing on the charged violation, and the nature and importance of those rights, appellant waived her right to a hearing and admitted the third violation. This time the court terminated probation, stating as follows: Its readily apparent to this Court you dont care about the program. Youre not going to do it. Three times we tried to get you to go to the first step, which is an intake, and you havent done it. So I think, at this time, the Court will terminate you from 1210 Court.
Appellant waived time for sentencing and the sentencing hearing was held on February 28, 2007. The short hearing commenced with the following exchange between the court and appellant:
THE COURT: I believe Ms. Kelly indicated she simply wants to do her time, has no interest in treatment, does not want to participate in treatment, so it was put over for sentencing. [] . . . [] The Courts gone back through the file. Its apparent you dont want treatment, and ImIm sorry to hear that, because you need it. All youre doing is putting yourself in and out of jail. And youre either going to expose yourself to going to State Prison or killing yourself. Thats basically where youre headed. You just arent willing to take a hold of whats going on. Drugs are gaining control of your life.
THE DEFENDANT: Ive done a 90-day program. I didnt need any Courts to send me there. Its just at this time, I couldnt comply with your program. But Im not going to go back to heroin. I already know that. Im not saying Ill be straight, but Im not going back to heroin. Thats for sure.
THE COURT: Well, I hope youre right.
The court thereupon sentenced appellant to one year in county jail with credit for time served and placed her on three years probation with numerous conditions, including drug testing and a search clause. Appellant was ordered to pay a $20 security fee, a $250 probation supervision fee, a restitution fund fine of $220 pursuant to section 1202.4, subdivision (b), and $220 pursuant to section 1202.45, which was suspended unless probation is revoked.
This timely appeal was filed on March 27, 2007.
DISCUSSION
Appellant was at all times represented by able counsel and her mental competence is not questionable. She was adequately admonished by the court as to the importance of the rights she waived and admissions she made and the consequences of her waivers and admissions, and it satisfactorily appears that her waivers and admissions were informed and voluntary.
The revocation of probation and sentence were justified. SACPA expressly provides that [i]f a defendant receives probation . . . and for the third or subsequent time violates that probation . . . by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation should be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation . . . unless the court determines that the defendant is not a danger to the community and would benefit from further treatment . . . . ( 1210.1, subd. (f)(3)(C), italics added.) The trial courts determination after hearing that appellant would not benefit from further drug treatment, because she was adamantly unwilling to participate in such treatment, was obviously justified. In these circumstances, appellant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of [SACPA]. ( 1210.1, subd. (f)(1).) There was no sentencing error.
DISPOSITION
For the foregoing reason, the rulings revoking appellants probation and imposing sentence are affirmed.
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Kline, P.J.
We concur:
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Lambden, J.
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Richman, J.
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[1]All statutory references are to the Penal Code unless otherwise indicated.
[2]Orenda is an Iroquois word meaning Tribal Soul on the Right Path.
