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The People v. Charmain Renee Riggs

June 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHARMAIN RENEE RIGGS, DEFENDANT AND APPELLANT.



Super. Ct. No. CM029875

The opinion of the court was delivered by: Hull ,j.

P. v. Riggs 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 entered a negotiated plea of no contest to one count of forgery (Pen. Code, § 470, subd. (a)) and was sentenced to the upper term of three years in state prison. Execution of sentence was suspended and defendant was placed on five years formal probation on the condition, among others, that she complete a substance abuse treatment program approved by the probation department.

Defendant failed to enter the required substance abuse program and was charged with a probation violation. The trial court revoked probation and reinstated the three-year sentence.

Defendant appeals, contending the trial court abused its discretion in revoking probation because the condition in question was unconstitutionally vague. We conclude defendant forfeited this challenge by failing to object to the probation condition at the time it was imposed and failing to appeal following her initial sentencing. We further conclude substantial evidence supports the finding of a probation violation and affirm the judgment.

Facts and Proceedings

Defendant was charged with two counts of forgery, one involving a personal check in the amount of $110 and the other a personal check in the amount of $225. On March 19, 2009, defendant entered a negotiated plea of no contest on one count in exchange for dismissal of the other.

On May 12, 2009, defendant was sentenced to the upper term of three years in state prison. Execution of sentence was suspended and defendant was placed on formal probation for five years. Special condition No. 1 of probation required defendant to serve 120 days in county jail, commencing May 26. Special condition No. 20 required her to complete a substance abuse treatment program. It read:

"You are to enter and complete a residential substance abuse treatment program FOR A MINIMUM OF 6 MONTHS (SALVATION ARMY) as specifically approved by your probation officer. Do not leave or otherwise terminate your participation in the program without the permission of program staff and your probation officer. While in the program, you are subject to warrantless search and drug/alcohol testing by program staff. You must follow all program rules as a condition of probation. Upon graduating from the program, you are to participate in any 'aftercare' program (to include a 12 Step or other approved self-help program) as recommended by program staff. Report in person to the Butte County Probation officer in Oroville at 1:00 p.m. on the first Tuesday after you leave the program for any reason. No custody time credits will accrue for participation in a residential treatment program, as a condition of probation."

Defendant failed to report for jail on May 26 as required. At a hearing on June 11 on defendant's motion to modify special condition No. 1, defendant explained she did not report for jail because she was in the hospital. The trial court denied the motion and remanded defendant to jail.

On December 4, 2009, defendant was released from custody. She reported to the probation department on December 18, at which time she was directed to report to a residential treatment program.

On December 23, 2009, defendant moved for modification of her probation conditions to eliminate special condition No. 20, claiming substance abuse treatment was no longer necessary. At the hearing on the motion, defendant informed the court she had applied for admission to "Maple House" and asked to use ...


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