People v. Watson CA4/3

Filed 3/25/14 P. v. Watson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047650

v. (Super. Ct. No. 12CF0510)

DAVID LEE WATSON, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, James A. Stotler, Judge. Reversed and remanded for resentencing. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant David Lee Watson appeals from an order revoking his probation and executing a previously suspended sentence under Penal Code section 1203.2, subdivision (c). He contends the court committed legal error when it expressed the position that, given the probation violations, it had no choice but to execute the sentence. He also contends the court violated his right to due process by considering uncharged probation violations in deciding to revoke probation. We agree with defendant’s first contention and remand for resentencing, which makes consideration of his second contention unnecessary.

FACTS

In March of 2012, defendant pleaded guilty to one count of possession of methamphetamine in violation of Health & Safety Code section 11377, subdivision (a), and one count of possession of marijuana in violation of Health & Safety Code section 11357, subdivision (b). Defendant admitted he had one prior strike (robbery), and had served four prior prison terms under Penal Code section 667.5, subdivision (b). The court struck the strike and the four prior prison terms for sentencing purposes. The court sentenced defendant to two years in state prison on the first count and suspended imposition of sentence on the second. The court then suspended execution of the two-year sentence and placed defendant on formal probation for three years. Among other terms of the probation, defendant was required to complete a one- year drug rehabilitation program. In April of 2012, defendant enrolled in the Victory Outreach Rehabilitation Program (Victory Outreach) in Santa Ana. Defendant did not like that home, so he transferred to a different Victory Outreach home in Santa Ana 10 days later. According to defendant’s probation officer, for the first three and one-half months, defendant was in