People v. Payton CA3

Filed 2/28/14 P. v. Payton CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C074448

Plaintiff and Respondent, (Super. Ct. No. 13PRCS0122)

v.

BRANDON PAYTON,

Defendant and Appellant.

Defendant Brandon Payton was convicted of possessing a firearm under qualifying circumstances. (Pen. Code, § 29800, subd. (a)(1).)1 He was sentenced to prison for one year four months. He was released from custody on October 9, 2012. On June 21, 2013, a petition for revocation of postrelease community supervision (PRCS) was filed alleging that, on May 24, 2013, defendant reported to probation but

1 Undesignated statutory references are to the Penal Code.

1

refused to submit to urinalysis; upon further questioning he admitted to using pills that had not been prescribed to him. The petition alleged four prior PRCS violations: (1) on January 16, 2013, defendant was arrested for methamphetamine use and served 10 days’ flash incarceration, (2) on February 19, 2013, defendant was arrested for being in a home where narcotics were present and served 10 days’ flash incarceration, (3) on March 29, 2013, defendant admitted to using Vicodin that had not been prescribed to him, and (4) on April 2, 2013, defendant failed to report to probation as directed and served 90 days’ incarceration. The petition recommended that, due to defendant’s continual failure to comply with conditions of PRCS, he be ordered to serve 180 days in jail. On June 24, 2013, the trial court found probable cause to support the petition and set a revocation hearing for July 19, 2013. On July 19, 2013, the trial court found the petition true by a preponderance of evidence. Defendant was ordered to serve 180 days’ incarceration, awarded 27 days’ custody credit and 26 days’ conduct credit, and returned to PRCS under the original terms and conditions. The court found defendant is not cooperative with PRCS; has suffered previous flash incarceration; and needs to be made aware of the absolute necessity of compliance with his conditions. FACTS Defendant was released on PRCS on conditions including he “not knowingly use, handle or possess controlled substances of any kind unless lawfully prescribed to [him] by a licensed medical practitioner.” Sacramento County Probation Officer Frank Marin testified he spoke to defendant on May 23, 2013, and directed him to report to the probation department the following day. Defendant reported as directed and Marin asked him to submit a urine test. Defendant responded he could not do so. Upon questioning, defendant stated he took a pill the previous night. Although Marin was not certain, he believed defendant identified