People v. Leftenant CA2/6

Filed 7/16/14 P. v. Leftenant CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250448 (Super. Ct. No. 2008015968) Plaintiff and Respondent, (Ventura County)

v.

JUBAL LEFTENANT,

Defendant and Appellant.

Jubal Leftenant appeals from the trial court's order revoking probation and ordering him to serve a two-year state prison sentence, execution of which was suspended in 2010. We affirm. (Pen. Code, § 1203.2, subd. (a); People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Facts and Procedural History On March 1, 2010, appellant entered into a negotiated plea to felony driving under the influence of alcohol (DUI) with a prior DUI conviction (Veh. Code, § 23152, subd. (a); 23550.5, subd. (a)) and driving with a suspended license with a prior DUI conviction (Veh. Code, § 14601.2). The trial court sentenced appellant to two years state prison, suspended execution of sentence, and granted five years formal probation with 120 days county jail. As a condition of probation, appellant was ordered not to use or possess marijuana unless pursuant to a doctor's recommendation. He was also to

enroll in and complete a Multiple Conviction Drinking Driver Program (MCDD program). On May 31, 2012, a violation of probation (VOP) notice was filed alleging tht he was driving with a suspended driver's license, not paying a $200 fine to the State Restitution Fund, and not paying probation fees totaling $2,688.34. A first amended VOP notice was filed, alleging that he had failed to report to probation or submit to drug alcohol testing, had tested positive for marijuana, and was disqualified from the MCDD program on November 20, 2012. Appellant claimed the marijuana was medically "prescribed" for back pain and that "he never missed" his MCDD classes. After Appellant admitted the probation violation, the trial court revoked and reinstated probation and re-referred appellant to the MCDD program. On May 21, 2013, a new VOP notice was filed alleging that he failed to report to probation and had not submitted to drug/alcohol testing on May 3, 2013. The VOP notice alleged that appellant tested positive for marijuana on May 10, 2013 and was disqualified from the MCDD program for excessive absences and acting inappropriately with program staff. The trial court revoked probation, reinstated probation with modifications, and re-referred appellant to the MCDD program. On July 16, 2013, a first amended VOP notice was filed for not reporting to probation or submitting to drug testing on May 3, 2013 and July 12, 2013. The amended VOP notice alleged that appellant: (1) was disqualified from the MCDD program for excessive absences and inappropriate conduct, (2) that appellant had not made restitution payments and was $2,623.34 in arrears on his probation fees, and (3) that a glass marijuana pipe, a baggie of one gram of marijuana, and marijuana containers were found in appellant's house during a probation search. The VOP notice stated that appellant had a 20-year criminal record that included five prior DUI convictions, one of which was a felony, and that appellant "consistently demonstrates noncompliance and . . . fails to take responsibility for his actions. He continues to challenge probation and he cannot be properly supervised in the community." (Original in bold.)