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People v. Sizemore

July 9, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THOMAS SIZEMORE, JR., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Rayvis, Judge. Affirmed. (Los Angeles County Super. Ct. No. SA054096).

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PUBLICATION

Thomas Sizemore, Jr. appeals from the judgment entered following revocation of probation which had been granted after his plea of guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court sentenced Sizemore to 16 months in state prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Plea and Pre-Proposition 36 Proceedings

In a complaint filed on October 7, 2004, Sizemore was charged in count one with possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), a felony, and in count two with the misdemeanor of possession of a smoking device in violation of Health and Safety Code section 11364.

At proceedings held on October 18, 2004, Sizemore pleaded guilty to the charge of possession of methamphetamine. He pleaded not guilty to the misdemeanor of possessing a smoking device. Sizemore waived time for a pretrial hearing as to the misdemeanor charge and waived time for entry of judgment as to the felony, possession of methamphetamine. Entry of judgment was deferred for 18 months based on various terms and conditions agreed to by Sizemore.

At a hearing held on January 11, 2005, a probation report making references to violations of the agreed-upon terms of Sizemore's deferred entry of judgment was provided to all of the parties. The deferred entry of judgment was summarily terminated and Sizemore was ordered to report to the probation department no later than January 14, 2005.

2. Sizemore is Referred to a Proposition 36 Program

At court proceedings held on February 24, 2005, Sizemore admitted having violated the terms of his deferred entry of judgment in that he had used methamphetamine. When the trial court ―terminated‖ the deferred entry of judgment, Sizemore requested consideration under Proposition 36. The trial court granted Sizemore's request and referred him to a Proposition 36 program.

On March 24, 2005, imposition of sentence was suspended and Sizemore was placed on probation for a period of 18 months under the provisions of Proposition 36. On April 14, 2005, Sizemore reported to the trial court for a Proposition 36 progress report. At that time, he had committed no violations of the terms and conditions of his probation. However, on June 22, 2005, the case was called for Sizemore's first probation violation hearing.

3. The July 22 and October 17, 2005 Probation Violation Proceedings

At the hearing held on July 22, Sizemore and his counsel stipulated to a probation violation and the trial court found Sizemore had violated the terms of his probation by using a false device and providing a false urine sample. The trial court revoked probation, terminated Sizemore's participation in the Proposition 36 program and ordered him placed in a 24-hour-a-day residential drug treatment program at Las Encinas Hospital pending a dispositional hearing.

At the hearing held on October 17, 2005, the trial court imposed, then suspended, a 16-month prison sentence for Sizemore's admission he had possessed methamphetamine as alleged in count one, then again placed Sizemore on Proposition 36 probation for 36 months. The misdemeanor count alleging Sizemore had possessed a smoking device was dismissed.

4. The February 2006 Proceedings

On December 2, 2005, the trial court indicated it had reviewed a recent probation report which indicated Sizemore had had one positive drug test. Accordingly, the trial court set a hearing regarding Sizemore's second violation of probation for January 13, 2006. The hearing actually took place from February 2 to February 9, 2006.

On February 2, 2006, Sizemore's probation officer testified that Sizemore was to bring to her on December 8, 2005 proof that he had registered as a narcotics offender. Sizemore, however, had failed to do so. He had not reported to the probation officer at all that day. In addition, Sizemore had failed to appear at the first of several meetings of the 12-step narcotics program he had been ordered to attend. Although the meetings had begun in December 2005, he first attended a meeting on January 9, 2006.

A second deputy probation officer testified that he worked in the narcotics testing unit. He supervised the giving of samples by defendants on formal probation, then reviewed the results from the tests performed on the samples. In November 2005, the officer was to supervise the giving by Sizemore of a urine sample for drug screening. The screening test came out positive for methamphetamine. It was determined, however, that Sizemore was taking a prescription drug which might have altered the results of the test.

Yet another probation officer, the officer primarily responsible for supervision of Sizemore, testified that on January 5, 2006 she notified Sizemore by leaving a message on his cellular telephone that he was to come in for testing at 8:00 a.m. on January 9. In the message, the probation officer emphasized the importance of the test and that it would be considered a ―positive‖ if Sizemore missed the appointment. Sizemore left a voice-mail message for the probation officer between noon and 1:00 p.m. on January 9 indicating he would not be able to come in for the test because he had a meeting and ―a rehearsal for a movie.‖ Although the probation officer left a message for Sizemore indicating he nevertheless needed to come in, the probation officer did not again hear from Sizemore. In her report, the probation officer noted that Sizemore was ―not making an effort to cooperate.‖ The probation officer testified that, had Sizemore shown up late for his testing, the officer would have accepted the test. The officer noted that on several occasions Sizemore had been late for appointments. When asked how she would rate Sizemore's performance on probation up to January 9, 2006, the probation officer answered, ―I can't even say that it would be Okay. It's below the standards of what [I think] should be as far as compliance with probation.‖ The officer indicated Sizemore had, among other problems, a ―history‖ of failing to appear for ...


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