P. v. Ray

Filed 1/9/07  P. v. Ray CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kern County.  James M. Stuart, Judge.

            William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            Appellant Elizabeth Kay Ray pleaded guilty to felony possession of methamphetamine and was placed on probation pursuant to Proposition 36.  She violated probation three times and failed to appear for the sentencing hearing.  The court subsequently imposed the upper term of three years in state prison.  On appeal, she contends the court abused its discretion and improperly imposed the upper term.

FACTUAL AND PROCEDURAL HISTORY

            Around 1:33 a.m. on December 1, 2003, Kern County sheriff's deputies were on patrol when they saw appellant walking on the side of the road.  Appellant told the deputies that she did not have any identification and gave them permission to search her purse.  The deputies found a piece of plastic inside appellant's wallet, which contained an off-white granular substance.  Appellant was arrested for possession of methamphetamine.  Appellant was searched incident to her arrest, and a glass pipe was found in her jacket pocket.  The inside of the pipe was covered with a white residue believed to be methamphetamine.  The laboratory analysis of the seized contraband revealed it was 0.15 gram of a substance containing methamphetamine.

On December 3, 2003, a complaint was filed in the Superior Court of Kern County charging appellant with count I, felony possession of methamphetamine (Health & Saf. Code, §  11377, subd. (a)); count II, misdemeanor possession of drug paraphernalia (Health & Saf. Code, §  11364); and count III, misdemeanor giving a false identification to a police officer (Pen. Code, §  148.9, subd. (a)).  Appellant pleaded not guilty. 

The Probation Report

According to the probation report, appellant (born 1957) was a high school graduate, and completed three and a half years of college and a two-year program to be licensed as a psychiatric technician.  Appellant had been employed as a psychiatric technician at Atascadero State Hospital from 1986 to 2001. 

Appellant stated she started to drink alcohol when she was 17 years old but claimed she was not an alcoholic.  She started to use cocaine and marijuana when she was in her early 20's.  She moved on to ingesting and then injecting rock cocaine.  Appellant claimed she became â€