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The People v. Kirkland Delano Oard

December 10, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KIRKLAND DELANO OARD, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed. Super.Ct.No. FVI702706 Stephen S. Buckley,

The opinion of the court was delivered by: Hollenhorst Acting P.J.

P. v.

Oard CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant and appellant Kirkland Delano Oard pled nolo contendere to one count of possession of marijuana for sale (Health & Saf. Code, § 11359, count 1) and one count of child endangerment (Pen. Code, § 273a, subd. (a), count 2).*fn1 In return, a street terrorism count and gang enhancement allegation were dismissed. Defendant was sentenced to 48 months' probation under certain conditions. He was subsequently arrested and charged with transportation of marijuana (Health & Saf. Code, § 11359) and possession of marijuana for sale (Health & Saf. Code, § 11360, subd. (a)). A petition to revoke his probation was filed, alleging that he had violated two of his probation terms. Defendant admitted that he violated his probation. The court dismissed the charges underlying the new arrest and sentenced him to two years in state prison on the initial convictions.

On appeal, defendant contends that: 1) his admission to violating his probation was not knowing, intelligent, or competent, and he should be able to withdraw it; and 2) he is entitled to a recalculation of his presentence work and conduct credits under the recent amendment of section 4019. We affirm.

PROCEDURAL BACKGROUND

On March 18, 2008, defendant pled no contest and was placed on probation for 48 months, in case No. FVI702706. His probation conditions included the terms that he violate no law (term 2) and neither use nor possess any controlled substance without medical prescription (term 9).

On October 13, 2009, the probation office filed a petition to revoke defendant's probation, alleging that he violated terms 2 and 9 when he was arrested two days earlier on charges of possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of a controlled substance (Health & Saf. Code, § 11360, subd. (a)) (case No. FBA900614).

On October 15, 2009, defendant denied the allegations in the petition to revoke his probation.

On December 1, 2009, the court held a hearing on the violation of probation. Defense counsel stated that, pursuant to an in-chambers agreement, in return for defendant's admission to the probation violation, the court would impose a term of two years in state prison, instead of following the probation officer's recommendation of four years. The prosecution added that the new charges in case No. FBA900614 would be dismissed as a separate case but used only for purposes of the probation violation. Defense counsel agreed. The court then asked defense counsel to take the waiver and admission. Defense counsel addressed defendant as follows: "You understand, sir, that as to a violation of probation, you have a right to have a hearing in this matter. At that hearing you have the right to be represented by an attorney. You have a right to present evidence and testimony on your own behalf. You have a right to use the subpoena power of the court to have evidence and persons brought in to court to testify for you. You have a right to either cross-exam yourself or through your attorney. You have a right to either testify or remain silent. [ΒΆ] Do you understand those rights?" Defendant replied, "Yes." Defense counsel asked, "Do you waive and give them up and admit that you violated your terms and ...


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