People v. Haddad

[272]Opinion

TURNER, P. J. Defendant, Ousama Saadeh Haddad, pled guilty to methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)); marijuana possession (Health & Saf. Code, § 11357, subd. (b)); and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Defendant appeals from a subsequent probation revocation order. Defendant argues he was found in violation of probation based upon a drug-related offense; therefore, he was improperly denied the opportunity to participate in probation pursuant to Penal Code1 section 1210.1. This is commonly referred to as Proposition 36 probation. We affirm.

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781]; People v. Elliot (2005) 37 Cal.4th 453, 466 [35 Cal.Rptr.3d 759, 122 P.3d 968]; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On July 29, 2008, defendant was stopped while riding a bicycle. Defendant was agitated and fidgety, had rapid speech, and his pupils were constricted. Defendant admitted he had used methamphetamine that morning. After defendant was arrested, two baggies containing 1 gram of methamphetamine and 0.44 grams of marijuana were found in his pocket. On July 31, 2008, defendant pled guilty as set forth above. On August 14, 2008, the imposition of sentence was suspended. Defendant was placed on three years’ probation pursuant to section 1210.1, subdivision (a).2 Defendant was ordered to not use or possess any narcotics, dangerous or restricted drugs, or related paraphernalia without a prescription; participate in a drug treatment program; submit to antinarcotic testing and search and seizure; and attend three Narcotics Anonymous meetings per week.

On November 17, 2008, defendant was found in possession of a device which attaches to an individual’s body with a plastic tube that connects to a bottle filled with “clean” urine. (See People v. Budwiser (2006) 140 Cal.App.4th 105, 107 [44 Cal.Rptr.3d 296].) The device is used to provide urine that does not contain evidence of narcotics use in order to falsely reflect a negative test result. On December 11, 2008, a probation revocation hearing was held. The prosecutor argued that defendant’s possession of the device constituted the offense of producing false evidence to a court, a separate violation which was not drug related within the meaning of section 1210.1,