Filed 9/22/16 P. v. Valerio CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H043341
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1366998)

         v.

GEORGE BARRON VALERIO,

         Defendant and Appellant.


         Defendant George Barron Valerio appeals the trial court’s postjudgment order
disqualifying him from further participation in a Proposition 36 (the Substance Abuse and
Crime Prevention Act of 2000) drug treatment program and ordering him to serve a jail
term. Defendant had pleaded no contest to one felony count of possession of a controlled
substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). The court
suspended imposition of sentence and granted defendant two years’ probation in
accordance with the provisions of Proposition 36 and Penal Code section 1210.1.
Defendant has appealed the original judgment in a separate appeal (case No. H041564).
         While on Proposition 36 probation, defendant tested positive for
methamphetamine ten times and admitted three separate violations of probation based on
those positive drug tests. After defendant admitted his third probation violation, the court
disqualified him from further Proposition 36 probation services, and imposed a 60-day
jail term, with probation to end upon his release from jail. The appeal in this case is from
that order.
       We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende), which
stated the case and the facts but raised no specific issues on appeal. We notified
defendant of his right to submit written argument on his own behalf within 30 days. The
30 days have elapsed, and we have received no written argument from defendant. After
reviewing the entire record, we will conclude there is no arguable issue on appeal and we
will affirm the order terminating defendant’s Proposition 36 probation and sentencing
him to 60 days in jail.

                          FACTS AND PROCEDURAL HISTORY1

       On September 25, 2013, defendant was a passenger in a car driven by “Mr.
Honeycutt.” Santa Clara Police Officer Luke Erickson made a traffic stop after he
noticed the car’s license plate was not properly illuminated and the driver was moving
erratically inside the car. During the traffic stop, Officer Erickson pat searched defendant
and found 0.63 grams of methamphetamine (a usable amount) in one of defendant’s pants
pockets. Defendant has a long history of drug use, with prior drug convictions in 2000
and successful completion of a drug rehabilitation program in 2001.
       After his motions to suppress were denied, defendant pleaded no contest to one
felony count of possession of methamphetamine (former Health & Saf. Code, § 11377,
subd. (a)). In September 2014, pursuant to the parties’ plea agreement, the court
suspended imposition of sentence and placed defendant on two years’ probation under the
provisions of Proposition 36 and Penal Code section 1210.1



       1
         Some of the facts and procedural history is based on the record in case
No. H041564. To add background and context to the issues presented here, we have
taken judicial notice of the record in that case on our own motion. (Evid. Code, §§ 452,
subd. (d), 459.)
                                             2
          In October 2014, defendant appealed the original judgment. In that appeal (case
No. H041564), he challenges the denial of his motions to suppress.
          Also in October 2014, defendant started a Proposition 36 drug treatment program.
On November 6, 2014, defendant was arraigned on an alleged violation of his
Proposition 36 probation. While the nature of the violation is not clear in the record, it
appears to have been based on defendant’s failure to obtain a drug test on October 27,
2014, as ordered by the court, and to provide proof that he was attending the twelve-step
meetings ordered by the court. These allegations were later dropped.
          In December 2014, the court granted defendant’s motion to reduce his offense to a
misdemeanor under Proposition 47.
          Defendant tested positive for methamphetamine in December 2014 and
March 2015. (Further date references are to events in 2015.) At a review hearing on
March 26, defendant was arraigned on a violation of probation based on the positive drug
tests, which the court designated as Violation No. 1. Defendant admitted the violation.
The court found the allegation true and continued defendant on Proposition 36 probation.
That same day, defendant tested positive for methamphetamine.
          Defendant again tested positive for methamphetamine on April 15 and 16.
Defendant failed to appear for a review hearing on April 23. The court revoked
probation, issued a bench warrant, stayed execution of the warrant, and continued the
review hearing to May 7. When defendant failed to appear on May 7, the bench warrant
issued.
          On August 6, defendant voluntarily entered a detoxification program and
contacted his probation officer. He left the program a few days later after his roommate
talked about using and selling drugs. Defendant contacted his probation officer and was
directed to outpatient services. Defendant appeared for a review hearing on August 26.



                                              3
At that time, he was charged with a second violation of probation for his failure to appear
on May 7, and probation remained revoked.
       On September 3, defendant told the court he was trying to get back into a
residential treatment program. The court reinstated defendant’s Proposition 36 probation
and ordered defendant to obtain a drug test that day. Defendant complied with the order
and tested positive for methamphetamine. He also produced a positive test on
September 10. On September 15, the probation officer asked the court to find a violation
of probation based on defendant’s positive drug tests on September 3 and 10, and the fact
that he had discontinued detoxification services in August. The court denied that request
at that time and ordered defendant to contact detoxification services daily. Defendant
again tested positive on September 17.
       At a review hearing on September 24, the court modified defendant’s probation,
ordered defendant to obtain detoxification services, and ordered the Department of
Alcohol and Drug Services to do everything possible to get defendant into a program.
Defendant entered a detoxification program on September 29, completed the program on
October 5, and was referred for outpatient services.
       Defendant appeared for review hearings on October 8, 15, and 22; he was
participating in his drug treatment program. On October 22, defendant was arraigned on
alleged violations of his probation that appear to have been based on his three positive
drug tests in September 2015, which the court designated as Violation No. 2. Defendant
admitted the violation; the court found the allegation true and continued defendant on
Proposition 36 probation.
       On November 12 and 24, defendant tested positive for methamphetamine. On
December 2, the probation officer filed a petition to modify probation, recommending
that defendant be arraigned on a third violation of probation and disqualified from further
Proposition 36 services. On December 10, defendant admitted he violated probation by

                                             4
testing positive for methamphetamine. The court found the allegation true, modified
probation, and disqualified defendant from further Proposition 36 services. On
December 14, the court imposed a 60-day jail sentence, with credit for four days served
(two actual days and two days conduct credits).

                                       DISCUSSION

      We have independently reviewed the entire record under Wende, supra,
25 Cal. 3d 436. Based upon that review, we conclude there is no arguable issue on
appeal. The trial court did not abuse its discretion when it revoked defendant’s
Proposition 36 probation based on multiple violations of his probation—which included
ten positive drug tests—and sentenced defendant to a jail term.
      Nothing in this opinion is intended to reflect on the issues raised in defendant’s
pending appeal in case No. H041564.

                                      DISPOSITION

      The court’s December 14, 2015 order is affirmed.




                                            5
                                        ____________________________________
                                        Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Walsh, J.




People v Valerio
H043341


      
       Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.