P. v. Fusi
Filed 6/25/08 P. v. Fusi CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. KENNETH EUGENE FUSI, Defendant and Appellant. | D051595 (Super. Ct. No. CF10628) |
APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contreras, Judge. Affirmed.
This appeal arises from a contested probation revocation which resulted in the trial court revoking defendant's probation and sentencing him to prison in accordance with a plea agreement reached in August 2002.
FACTS
Kenneth E. Fusi pleaded guilty to one count of possessing methamphetamine for sale (Health & Saf. Code, 11378) and possession of a destructive device (Pen. Code, 12303). In October he was sentenced in accordance with his plea bargain to the middle term of two years in state prison on each count, to run concurrently, with execution of the sentence being suspended. He was placed on probation for five years with normal drug-related terms and conditions (including abstaining from the use of illegal drugs and submitting to drug testing) and incarceration in local custody.
In May 2005 Fusi admitted he violated probation because he had tested positive for drug usage on 10 different occasions between December 2004 and March 2005. His probation was revoked and reinstated under the same prior terms and conditions plus participation in the Volunteers of America program.
In June 2007 another petition to revoke probation was filed alleging that between February and June 2007 Fusi had tested positive for drugs on 14 occasions and failed to provide a sample on one occasion. Fusi denied the allegations.
At a contested hearing in July, Fusi's probation officer testified that in 2005 when Fusi's probation was reinstated, he met with Fusi and explained the terms of his probation, including his obligation to submit to drug tests. Fusi acknowledged he understood these terms. The probation officer stated that he immediately began testing Fusi and that the testing continued at least one time per week for the next two years.
The probation officer described the protocol he followed to obtain a urine sample from Fusi, identify it, submit it to a registered laboratory, and confirm the results as pertaining to Fusi. He also identified (1) eight Forensic Drug Testing Custody and Control Forms signed by Fusi and the probation officer (between March 1 and May 25, 2007) when Fusi provided a urine sample, and (2) eight reports from Quest Diagnostics showing that each of the eight samples was positive for drugs. The court received these documents into evidence.
The officer also testified that he discussed a positive test for marijuana with Fusi in March 2007 and Fusi admitted that he still used marijuana even though he was close to completing his probation term. Fusi later acknowledged missing a test appointment because he knew he would have tested positive.
At the conclusion of the hearing, the trial court found appellant was in violation of probation and revoked it. The court sentenced Fusi to two concurrent two-year terms in prison, with 700 days of custody credit.
DISCUSSION
Appointed appellant counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal. 3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the court below erred in admitting the positive test reports over defense counsel's hearsay and relevance objections; and (2) whether the court erred in admitting appellant's statements to the probation officer at the probation office when Fusi was not in custody.
We granted Fusi permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Anderson on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
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