People v. Rupe CA5

Filed 8/29/22 P. v. Rupe CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F083979 Plaintiff and Respondent, (Super. Ct. No. CRF56582) v.

EMANUEL ERICQ RUPE, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Snauffer, J., and DeSantos, J.

STATEMENT OF APPEALABILITY Emanuel Rupe appeals, pursuant to Penal Code1 section 1237, subdivision (b), after the superior court found that he violated his probation on December 20, 2021. This appeal is from an order that finally disposes of the issues between the parties. STATEMENT OF THE CASE On January 14, 2019, Rupe pleaded guilty to a violation of section 245, subdivision (a)(1), assault with a deadly weapon (knife). He was placed on formal probation for five years and given 218 days in county jail as a condition of probation. Various other terms and conditions were imposed. One of Rupe’s probation conditions required that he “abstain from the use of alcohol and not be present in any establishment where the primary items for sale are alcoholic beverages, and do not possess alcoholic beverages.” He tested positive for alcohol on January 10, 2020, February 10, 2020, March 2, 23, and 30, 2020, and April 6, 13 and 20, 2020. On April 5, 2021,2 Rupe admitted the violations as alleged. On May 13, probation was revoked, reinstated, and modified. The probation termination date was set at December 18. He waived his right to custody credits pursuant to People v. Johnson (2002) 28 Cal.4th 1050 and People v. Zuniga (1980) 108 Cal.App.3d 739. He was ordered to serve 52 days in custody, with credit for 52 days, and was directed to enroll in and successfully complete the Daily Reporting Center (DRC) program. On October 28, Rupe was charged with violating three of his probation conditions: (1) He tested positive for alcohol on August 31 and October 5; (2) He failed to submit to drug and alcohol testing as ordered on October 12 and 18; and (3) He failed to enroll in