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P. v. Villescas

P. v. Villescas
11/29/08



P. v. Villescas



Filed 11/14/08 P. v. Villescas CA2/5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



SECOND APPELLATE DISTRICT



DIVISION FIVE



THE PEOPLE,



Plaintiff and Respondent,



v.



DAVID JACOB VILLESCAS,



Defendant and Appellant.



B204647



(Los Angeles County Super. Ct.



No. NA075223)



APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Affirmed.



Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.



Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.



_______________________________________




Defendant and appellant David Jacob Villescas entered a plea of no contest to a charge of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) and admitted suffering two prior convictions under the three strikes law (Pen. Code,  1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). His plea and admissions were entered on December 10, 2007, based on allegations that the offense occurred on August 5, 2007. The trial court struck one of the prior convictions, sentenced defendant to the low term of 16 months in state prison on the narcotics charge, and doubled the term to 32 months based on the remaining prior conviction. The trial court ruled defendant was ineligible for Proposition 36 probation because he had previously been convicted of a serious or violent felony, and defendant had not remained free of prison custody for a period of five years prior to the current offense.



Defendant filed a timely notice of appeal, challenging the trial courts ruling on defendants ineligibility under Proposition 36. Counsel was appointed to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues but asking this court to independently review the record. Defendant was notified of his right to file a supplemental brief.



Defendant filed a supplemental letter brief arguing the trial court erred in ruling that he was ineligible for probation under Proposition 36. In his letter brief, defendant contends he surrendered himself to a parole office due to a drug relapse. He spent 40 days in a drug rehabilitation program (the Substance Abuse Treatment Central Unit or SATCU) in a county jail facility, but was then released back on parole without having been found in violation of his parole conditions. Because he was not returned to state prison and not found in violation of parole, defendant contends he was entitled to a grant of probation under Proposition 36.



We asked for additional briefing from appointed counsel and the Attorney General on issues raised by defendants letter brief, including whether time spent in SATCU was the equivalent of a return to prison for purposes of disqualification of eligibility under Proposition 36. In addressing the issues raised in the appeal, we grant defendants unopposed request for judicial notice of the prison records that were before the trial court, but which had not been part of the record on appeal.



Proposition 36 was passed as an initiative by the voters in 2007. In general, the proposition calls for drug treatment as a condition of probation instead of incarceration for qualifying defendants. (Pen. Code, 1210, 1210.1.) A defendant convicted of one or more violent or serious felonies is ineligible for probation under Proposition 36 unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. (Pen. Code, 1210.1, subd. (b)(1).)



With the prison records now properly before this court, we hold that the trial court correctly ruled that defendant was not eligible for probation under Proposition 36. It is undisputed that defendant suffered prior serious or violent felony convictions, in that he admitted prior convictions of robbery and residential burglary in conjunction with his plea. The prison records reflect that a parole hold was placed on defendant in October 2003. The Board of Prison Terms ordered defendant returned to custody. He was ordered released from custody with credit for 40 days served on November 17, 2003. It was not until October 2004, approximately one year later, that defendant was placed in SATCU.



Because defendants November 2003 return to custody was within five years of defendants 2007 narcotics offense in this case, defendant was statutorily ineligible for Proposition 36 probation. We need not determine whether defendants 2004 participation in SATCU constitutes a return to prison custody, because the trial court correctly determined that Proposition 36 did not apply for other reasons.



The judgment is affirmed.



KRIEGLER, J.



We concur:



TURNER, P. J. ARMSTRONG, J.



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Description Defendant and appellant David Jacob Villescas entered a plea of no contest to a charge of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) and admitted suffering two prior convictions under the three strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). His plea and admissions were entered on December 10, 2007, based on allegations that the offense occurred on August 5, 2007. The trial court struck one of the prior convictions, sentenced defendant to the low term of 16 months in state prison on the narcotics charge, and doubled the term to 32 months based on the remaining prior conviction. The trial court ruled defendant was ineligible for Proposition 36 probation because he had previously been convicted of a serious or violent felony, and defendant had not remained free of prison custody for a period of five years prior to the current offense. The judgment is affirmed.


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