P. v. McNeese CA3

Filed 5/22/13 P. v. McNeese CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C070626

Plaintiff and Respondent, (Super. Ct. No. NCR77893)

v.

ROBERT MARTIN MCNEESE II,

Defendant and Appellant.

This is an appeal after remand for resentencing. In People v. McNeese (Oct. 17, 2011, C065352) [nonpub. opn.] (McNeese I), this court reversed and remanded, concluding that the trial court had failed to exercise its discretion and determine whether to return defendant to Proposition 36 probation for a non-drug-related probation violation. On remand, the trial court exercised its discretion and sentenced defendant to state prison.

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Defendant appeals, contending the trial court abused its discretion in sentencing him to prison instead of returning him to Proposition 36 probation. We reject this contention. Defendant also contends that he is entitled to additional presentence custody credit. We agree with this contention and will order the judgment modified accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2009, a deputy sheriff stopped a pickup truck for lack of a current registration sticker. The deputy observed the driver, defendant Robert Martin McNeese II, bend over as if he was hiding something under the seat. With defendant’s consent, the deputy searched defendant and the truck and found 0.8 grams of methamphetamine in defendant’s pocket and two glass smoking pipes in the truck cab. Defendant claimed the methamphetamine was for his personal use and that he had been “clean” for seven weeks until the previous night.

Defendant entered a plea of guilty to transportation of methamphetamine and admitted a strike prior. The court granted Proposition 36 probation. Defendant violated probation by failing to appear at a scheduling appointment with the community service officer. Defendant admitted to the probation officer that it was his fault that he forgot “after he lost the paperwork with the date of the appointment on it.” At sentencing, defense counsel stated that the appointment had “slipped [defendant’s] mind and he just didn’t get it done.” Further, defense counsel noted that defendant had developed pneumonia and was being treated by a doctor. In McNeese I, this court concluded that the violation was a non-drug-related violation of probation but the trial court, in sentencing defendant to state prison for six years, erroneously determined that defendant was no longer eligible for Proposition 36 probation. In reversing and remanding, this court concluded that the trial court had discretion to reinstate defendant on Proposition 36 probation but expressed no opinion on whether the trial court should do so.