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The People v. Mark Steven Bauer

March 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK STEVEN BAUER, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge. (Super. Ct. No. 1255923)

CERTIFIED FOR PUBLICATION

OPINION

THE COURT*fn1

After Mark Steven Bauer pled guilty to possession of a controlled substance, the court placed him on Proposition 36 probation, but twice he violated probation.*fn2 The sole issue on appeal is whether the court's termination of probation and imposition of a state prison sentence were proper. We affirm.

DISCUSSION

Preliminarily, we summarize the factual and procedural history of the case. On January 13, 2009, a deputy sheriff found in Bauer's possession two syringes, one filled with a brownish liquid that tested presumptively positive for heroin. He admitted the syringes were his and the liquid was heroin.*fn3

On January 15, 2009, a two-count complaint charged Bauer in count 1 with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and alleged five prison term priors (Pen Code, § 667.5, subd. (b))*fn4 - one for forgery (§ 470), two for petty theft with a prior (§ 666), and two for possession of a controlled substance (Health & Saf. Code, § 11350) - and charged him in count 2 with possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). He pled not guilty and denied the priors.

On February 10, 2009, the court accepted a negotiated settlement. Bauer withdrew his guilty plea, pled guilty to count 1 (possession of a controlled substance), and admitted three prison term priors (one for petty theft with a prior and two for possession of a controlled substance). The court dismissed count 2 (possession of a hypodermic needle or syringe), struck the other two prison term priors (one for forgery and one for petty theft with a prior), and placed him on Proposition 36 probation for three years.

On April 28, 2009, the probation department filed an order to show cause alleging that Bauer violated probation by failing to report to the probation officer as directed, by failing to complete substance abuse treatment, by failing to register under Health and Safety Code section 11590, and by failing to complete AIDS education. The probation department recommended that, if he were found to be in violation, he "be reassessed for motivation for continuation of treatment under Proposition 36." On July 29, 2009, he admitted that he was in violation of probation, which the court revoked, reinstated, and modified.

On August 31, 2009, the probation department filed an order to show cause alleging that Bauer again violated probation by again failing to report to the probation officer as directed, by again failing to complete substance abuse treatment, by again failing to register under Health and Safety Code section 11590, and by again failing to complete AIDS education. The probation department recommended that, if he were found to be in violation, his "participation in Proposition 36 be terminated" and he "be ordered to serve a lengthy period of incarceration." On September 23, 2009, the court revoked his probation and issued a bench warrant on his failure to appear in response to the order to show cause.*fn5

On February 10, 2010, Bauer characterized the issue before the court not as "factual" but as "legal," admitted as "true" the allegations that he "failed to report, failed to complete the treatment, failed to register and failed to complete an AIDS education," and asked the court to allow him "to be referred back to Prop 36 and complete the program." After a lengthy colloquy with counsel, the court opined that the law allowed imposition of sentence on a "non-drug-related probation violation" after one violation, let alone two, and additionally opined, with reference to section 1210.1, subdivision (d)(3), that "there certainly is not good cause to extend [his drug treatment services] beyond 12 months at this point."*fn6 Bauer requested a contested violation of probation hearing, which began after the lunch recess that day.

At the contested hearing, the parties stipulated to the details of the violations of probation in the order to show cause filed on August 31, 2009:

"On July 29, 2009, the defendant was directed by the Court to report to the Probation Department by July 31, 2009. The defendant failed to report as ordered by the Court.

"On February 10, 2009, and July 29, 2009, the defendant was directed to enroll in and complete substance abuse treatment. As of the writing of this report, the ...


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