People v. Bauer

California Court of Appeal Mar 8, 2011 No. No. F059737Published

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Holding. The court properly terminated the defendant's Proposition 36 probation and imposed a prison sentence because the defendant's repeated and flagrant failure to comply with probation conditions constituted a refusal of drug treatment.

Issues

Whether the trial court abused its discretion or violated due process by terminating Proposition 36 probation and imposing a prison sentence following multiple probation violations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A Proposition 36 probationer with “an abysmal probation record” of “repeated and flagrant violations of probation” shows that he or she has, “in effect, ‘refuse[d] drug treatment as a condition of probation’ ” and “is thus ineligible for another reinstatement of Proposition 36 probation.””

Opinion

THE COURT.* After Mark Steven Bauer pled guilty to possession of a controlled substance, the court placed him on Proposition 36 probation, but twice he violated probation.1 The sole issue on appeal is whether the court’s termination of probation and imposition of a state prison sentence was proper. We affirm.

[398]DISCUSSION

Preliminarily, we summarize the factual and procedural history of the case. On January 13, 2009, a deputy sheriff found in Bauer’s possession two syringes, one filled with a brownish liquid that tested presumptively positive for heroin. He admitted the syringes were his and the liquid was heroin.2

On January 15, 2009, a two-count complaint charged Bauer in count 1 with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and alleged five prison term priors (Pen. Code, § 667.5, subd. (b))3—one for forgery (§ 470), two for petty theft with a prior (§ 666), and two for possession of a controlled substance (Health & Saf. Code, § 11350)—and charged him in count 2 with possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). He pled not guilty and denied the priors.

On February 10, 2009, the court accepted a negotiated settlement. Bauer withdrew his not guilty plea, pled guilty to count 1 (possession of a controlled substance), and admitted three prison term priors (one for petty theft with a prior and two for possession of a controlled substance). The court dismissed count 2 (possession of a hypodermic needle or syringe), struck the other two prison term priors (one for forgery and one for petty theft with a prior), and placed him on Proposition 36 probation for three years.

On April 28, 2009, the probation department filed an order to show cause alleging that Bauer violated probation by failing to report to the probation officer as directed, by failing to complete substance abuse treatment, by failing to register under Health and Safety Code section 11590, and by failing to complete AIDS education. The probation department recommended that, if he were found to be in violation, he “be reassessed for motivation for continuation of treatment under Proposition 36.” On July 29, 2009, he admitted that he was in violation of probation, which the court revoked, reinstated, and modified.

On August 31, 2009, the probation department filed an order to show cause alleging that Bauer again violated probation by again failing to report to the probation officer as directed, by again failing to complete substance abuse treatment, by again failing to register under Health and Safety Code section 11590, and by again failing to complete AIDS education. The probation department recommended that, if he were found to be in violation, his “participation in Proposition 36 be terminated” and he “be ordered to serve a lengthy period of incarceration.” On September 23, 2009, the court revoked

People v. Bauer

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DISPOSITION

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