P. v. Ball

















Filed 7/2/12
P. v. Ball CA3











NOT TO BE PUBLISHED











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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Sutter)

----




>

THE PEOPLE, Plaintiff and Respondent, v. ANDREW DOUGLAS GLEN BALL, Defendant and Appellant.

C068398 (Super. Ct. No. CRF093149)

This
case comes to us pursuant to href="http://www.mcmillanlaw.com/">People v. Wende (1979)
25 Cal.3d 436 (Wende).href="#_ftn1" name="_ftnref1" title="">[1] Having reviewed the record
as required by Wende, we affirm the
judgment.

We
provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On
December 20,
2009, defendant’s mother contacted law enforcement
after discovering her Sam’s Club Discover card was missing from her purse. When she called the credit card company to
report her card missing, she was advised a hold had been placed on the card
after a $494 purchase had been attempted at Wal-Mart. A subsequent $100 purchase had also been
attempted, and two additional fraudulent purchases had been made earlier that
month. The total amount in fraudulent
purchases was $1,502.63.

On
December 22,
2010, a parole agent was at defendant’s
mother’s residence, where defendant lived.
The parole agent found the stolen credit card in defendant’s pants
pocket, along with Wal-Mart receipts dated the days of the fraudulent
purchases. Defendant admitted he had
taken the card but claimed he used it only to gain access into Sam’s Club,
where he used cash to buy a Christmas gift, a set of Christmas ornaments, for
his mother. He claimed a friend had
taken the card from him and made the fraudulent purchases. No Christmas ornaments were found in
defendant’s mother’s residence. DVD’s
matching those on the Wal-Mart receipts for the fraudulent purchases were found
in defendant’s room. Wal-Mart
surveillance photos identified defendant as the individual using the stolen
credit card. Defendant’s mother believed
defendant was purchasing merchandise to trade for methamphetamine to support
his addiction.

Defendant
was charged with fraudulent use of an access card with a prior href="http://www.fearnotlaw.com/">theft conviction (Pen. Code, §§ 484g,
666),href="#_ftn2" name="_ftnref2"
title="">[2] second degree burglary (§ 459), and possession of stolen property
(§ 496, subd. (a)). Defendant
pleaded no contest to fraudulent use of an access card with a prior theft
conviction, and the remaining counts were dismissed with a Harvey waiver.href="#_ftn3"
name="_ftnref3" title="">[3] It was also agreed that
defendant would not be initially sent to state prison but, instead, be placed
on probation and ordered to serve a year in county jail, with the additional
proviso that he could be released early from county jail to enter into a
residential drug treatment program with the probation department’s approval.

On
March 12, 2010, the trial court placed defendant on three years’ formal
probation, in accordance with the terms of the plea agreement, and ordered him
into drug treatment. Defendant was also ordered to serve one year
in county jail and was given credit for 144 days for time served. The custody credits were subsequently
corrected to reflect a total of 120 days.
On April 7, 2010, defendant withdrew his request for drug court.

On
September 14, 2010, the probation officer filed a declaration stating defendant
had violated his probation by (1) testing positive for methamphetamine,
(2) failing to attend substance abuse counseling, (3) failing to contact the
probation officer as directed, and (4) failing to report to the probation
officer as directed. The trial court
issued an order revoking defendant’s probation.

On
October 1, 2010, defendant admitted he violated probation by submitting a urine
sample that tested positive for methamphetamine. Probation was reinstated on the condition
that he enroll in, attend, and complete a six-month residential treatment
program in San Francisco with the Salvation Army.

On
November 13, 2010, defendant was discharged from the Salvation Army residential
treatment program for theft and leaving the program without permission, after
he and another individual used an ATM card that did not belong to either of
them and did not return to the program until the following day. Defendant did not report his discharge from
the program to his probation officer until November 17, 2010. Defendant was thereafter accepted into the
Jordan’s Crossing Ministries rehabilitation program for a one-year commitment. However, on March 28, 2011, defendant was
discharged from that program for theft as well.
Defendant then refused to provide a urine sample upon request. Two days later, he tested positive for
methamphetamine.

On
April 11, 2011, the probation officer filed a declaration reporting that
defendant had tested positive for methamphetamine and had failed to complete
the residential treatment program. The
trial court revoked defendant’s probation.

On
May 9, 2011, defendant admitted both probation violations. On June 6, 2011, the trial court sentenced
defendant to the upper term of three years in state prison. The trial court also ordered defendant
pay $1,502.63 in victim restitution, a $200 restitution fine, a $200 probation
revocation fine, and a stayed $200 parole revocation fine. Defendant was awarded 265 actual days and 264
conduct days, for a total of 529 days of href="http://www.fearnotlaw.com/">custody credit.

Defendant
appeals.

Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.

DISPOSITION

The
judgment is affirmed.







RAYE , P. J.







We concur:







MURRAY , J.







DUARTE , J.