P. v. Ball CA4/3

Filed 7/22/13 P. v. Ball CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048120

v. (Super. Ct. No. R-00898)

JAMES KEVIN BALL, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Christopher J. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

Defendant James Kevin Ball filed a notice of appeal. His appointed counsel filed a brief summarizing the case, but advised this court he found no issues to support an appeal. We gave Ball 30 days to file a written brief on his own behalf, but he has not responded. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm. FACTS The probation department filed a petition to revoke Ball’s probation under the postrelease community supervision (PCS) program (Pen. Code, § 3455; all statutory references are to the Penal Code unless otherwise noted). The petition alleged Ball had been convicted of receiving stolen property (§ 496, subd. (a)) in October 2009 (Super Ct. Orange County, 2009, No. 07WF2768) and sentenced to three years in prison. He received his release to community supervision in February 2012. The petition alleged he missed appointments with his probation officer on May 2, May 16, June 20, and August 21, 2012, tested positive for amphetamines on August 8, and failed to provide a valid current address. On February 4, 2013, Huntington Beach Police arrested Ball, and found him in possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)), which resulted in the filing of a new criminal case (Super Ct. Orange County, 2013, No. 13WF0369). Ball pleaded guilty to nonviolent drug possession offenses in the new case, which qualified him for a drug treatment program under Proposition 36. The court placed Ball on probation and directed him to enroll in a program, but Ball still faced a potential jail sentence on the allegation he violated his probation under the PCS program. To forestall this, Ball filed a motion seeking drug treatment under Proposition 36 (§ 1210 et seq.) in lieu of PCS incarceration. He complained the Orange County courts had “as a matter of practice . . . imposed a substantial term of incarceration in advance of mandatory [Proposition 36] drug treatment” for persons on PCS, committing them to jail for 90 days before release for treatment under Proposition 36. Ball asserted the “practice