People v. Couch CA2/6

Filed 3/30/16 P. v. Couch CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262658 (Super. Ct. No. KA100548) Plaintiff and Respondent, (Ventura County)

v.

HARRY ALLAN COUCH,

Defendant and Appellant.

Harry Allan Couch was subject to post release community service (PRCS) when he was arrested by his supervising probation officer for violations of the conditions of his release relating to drug possession and use. Appellant had an informal probable cause hearing before another probation officer two days after his arrest. His first court appearance occurred 25 days later. Forty-five days after appellant's arrest, while he was still in custody, the trial court heard both appellant's motion to dismiss the petition for revocation and the petition itself. It denied the motion to dismiss, found one of the five original allegations to be true and ordered appellant to serve 90 days in county jail. With credit for time served and good conduct, appellant was ordered released from custody that day. Appellant contends the trial court erred because the PRCS revocation process violates his rights to due process and equal protection, and the requirements of Proposition 36. We remand the matter for a determination of whether appellant qualifies for treatment under Proposition 36. In all other respects, we affirm.

Facts Appellant was convicted in February 2013 of child abuse (Pen. Code, § 273A, subd. (a))1, forgery of a vehicle registration (Veh. Code, § 4463, subd. (a)(1)), and evading an officer. (Veh. Code, § 2800.2, subd. (a).) He was sentenced to state prison for a term of 2 years, 8 months. On May 4, 2014, appellant was released from prison and referred to the Ventura County Probation Agency for post-release community supervision (PRCS). The conditions of his release required appellant to, among other things, participate in random drug tests and refrain from using any controlled substances. On November 3, 2014, appellant provided a urine sample that tested positive for methamphetamine. On December 20, 2014, his probation officer and a police officer conducted a field check at appellant's residence. He was not able to provide a urine sample, but offered to have his blood drawn for a drug test. During a search of his residence, a probation officer found a silver pocket knife in the bathroom. Officers found no drugs or drug paraphernalia in the apartment. The probation officer stated that, during the field check, appellant "displayed the following symptoms consistent with being under the influence of a controlled substance: unkempt appearance, nervous attitude, visible neck pulse, constricted pupils in a well lit room, fidgety and spoke rapidly." Appellant consistently denied using drugs. He had valid prescriptions for medications to treat bronchitis and claimed the medications caused both the positive drug test and his inability to urinate. Because appellant would not be "honest" about his drug use, the probation officer stated, he could not be enrolled in rehabilitative services. The probation officer recommended appellant serve 180 days in custody, which she described as "a moderate incarceration time to serve as a period of sobriety and for [appellant] to use this time to reflect upon his behavior and his plans for his future on supervision." On December 29, the probation office filed a petition to revoke appellant's PRCS alleging appellant had violated the conditions of his release because: 1. he provided a urine sample that tested positive for methamphetamine on November 3, 2014; 2. he was