People v. BUDWISER

Opinion

SIMS, Acting P. J.

Defendant Philip Conrad Budwiser was charged with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count one) and misdemeanor possession of a methamphetamine pipe (Health & Saf. Code, § 11364; count two). It was further alleged that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b);

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undesignated section references are to the Penal Code) and that defendant was ineligible for probation except in an unusual case (§ 1203, subd. (e)(4)).

Defendant entered a plea of no contest to count one and admitted the prior prison term allegation. The court dismissed count two upon the prosecutor’s motion.

On July 7, 2004, the court granted probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act) (§ 1210).

On September 27, 2004, defendant failed to appear in court at a scheduled hearing. Probation was revoked and a bench warrant issued. Defendant was arrested and later released on October 15, 2004. He failed to appear on November 29, 2004, and a bench warrant issued.

A petition for revocation of probation was filed on December 2, 2004, alleging the failure to appear (FTA) on November 29, 2004.

On December 13, 2004, the court summarily revoked probation. Defendant was in Folsom State Prison and was ordered to appear on the violation of probation. On February 9, 2005, he denied the FTA alleged in the December 2, 2004, petition.

On March 4, 2005, a petition for revocation of probation alleged that defendant had been discharged from the Proposition 36 treatment program on or about November 17, 2004, based on three positive methamphetamine tests and one failure to test. The probation officer recommended residential drug treatment.

On March 7, 2005, a petition for revocation of probation alleged that on November 23, 2004, defendant was in possession of “a kit attached to his person consisting of a plastic hollow tube taped to his penis connected to a bottle filled with clean urine,” i.e., a “whizanator” device. The probation officer recommended termination of Proposition 36 treatment and commitment to state prison.