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The People v. Michael John Wooten

February 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL JOHN WOOTEN, DEFENDANT AND APPELLANT.



Super. Ct. No. SF099348A

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

P. v. Wooten 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Michael John Wooten appeals from a revocation of probation following his guilty plea to felony possession of cocaine and several probation violations on Proposition 36 probation and drug court probation. (Pen. Code, §§ 1210.1, 1237, subd. (b); Health & Saf. Code, § 11350, subd. (a); undesignated statutory references are to the Penal Code.) Defendant contends (1) the trial court erred in failing to order a probation report or supplemental report before sending him to prison, and (2) amended section 4019 entitles him to an increase in his presentence work and conduct credits. We modify the judgment to increase the credits, but we conclude there was no prejudicial error concerning the probation report, and therefore we affirm the judgment as modified.

BACKGROUND

On February 24, 2006, defendant was charged with possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) on February 22, 2006. Criminal proceedings were suspended pending an evaluation of defendant's mental competence (§ 1368). Meanwhile, the trial court released defendant on his own recognizance (OR) on the condition that he enroll in the county's Alcohol Drug Alternative Program (ADAP), but defendant repeatedly failed to enroll in ADAP and missed a court appearance. The trial court eventually revoked OR release.

On October 11, 2007, the trial court found defendant competent to stand trial, reinstated criminal proceedings, and reinstated OR release on the condition that defendant attend Narcotics/Alcoholics Anonymous (NA/AA) meetings. Defendant failed to appear for a court hearing, and the court revoked OR release.

On December 4, 2007, defendant pleaded guilty to cocaine possession, "waived referral to the Probation Office," and was placed on Proposition 36 drug treatment probation (§ 1210.1).

On March 11, 2008, the probation department reported defendant violated probation by failing to make contact with the Service First program. On April 2, 2008, defendant admitted the violation. The court reinstated probation and ordered defendant to report to the Proposition 36 office the next day.

On June 2, 2008, the probation department reported a second Proposition 36 violation, because defendant failed to report to the Proposition 36 office. Defendant admitted the second probation violation. The trial court reinstated probation with modified terms, including that he report to the Proposition 36 office by June 24, 2008.

On August 28, 2008, the probation department reported a third Proposition 36 violation, in that defendant was terminated from his drug treatment program at AEGIS Medical Systems for failing to contact/enroll in the program.

On October 23, 2008, defendant admitted the third violation, and the trial court referred the case to the probation department to determine if defendant was a suitable candidate for drug court (Health & Saf. Code, § 11970.1). On November 5, 2008, the probation department filed its "PROBATION OFFICER'S REPORT--SUITABILITY FOR DRUG COURT," recommending that defendant be given an opportunity to participate in drug court. The report noted defendant's criminal history "shows four felony and eight misdemeanor convictions between 1983 and 2007," all of which were "'drug' related offenses." The probation report stated that, based on defendant's statements, he "appears to have made some changes in his life to help him stay off of drugs. He said he no longer associates with people that use and does not go to places where people are using." He said he had been "clean" for a month.

On November 13, 2008, the trial court "deleted" Prop 36 probation, imposed a sentence of the lower term of 16 months in state prison, suspended execution of the sentence, "reinstated and modified" probation with referral of defendant to the El Dorado House residential treatment ...


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