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The People v. Sean Patrick Day

July 6, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SEAN PATRICK DAY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 06-2085)

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

P. v. Day

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Sean Patrick Day appeals from the trial court's judgment revoking his probation due to his possessing drug paraphernalia and imposing the prison sentence on the underlying felony sex convictions. Defendant asserts (1) no substantial evidence supports the court's determination that he violated the terms of his probation, and (2) the trial court abused its discretion under the circumstances of this case by sending him to prison instead of readmitting him to probation. We disagree with defendant's arguments and affirm the judgment.

FACTS

Defendant's underlying conviction arose from him sexually assaulting his four-year-old daughter. In 2008, defendant entered into a plea bargain where he agreed to plead no contest to one count of felony sexual penetration by a foreign object of a child under the age of 14 (Pen. Code, § 289, subd. (j)),*fn1 and one count of felony lewd acts upon a child under the age of 14 (§ 288, subd. (a)). In exchange, five other felony counts and one misdemeanor count would be dismissed, he would be sentenced to state prison for 10 years with execution stayed, and he would be admitted to felony probation for five years and serve one year in the county jail.*fn2

Siskiyou County Deputy Probation Officer Jennifer Villani appeared to oppose the proposal and to express her disapproval in the probation report.*fn3 The trial court considered the report and determined to honor the negotiated disposition. It sentenced defendant to 10 years in state prison (upper term of eight years on the penetration count and consecutive two years on the lewd acts count) but stayed execution for five years. It placed defendant on probation subject to various terms and conditions, including that he be subject to unannounced search, he obey all laws, and he serve one year in county jail.

The probation violation occurred approximately four months after defendant was released from county jail. At that time, he was living in a small camp trailer behind a residence where his brother and a companion lived. On July 17, 2009, Probation Officer Villani, Sergeant Joshua Tharsing of the Siskiyou County Sheriff's Department, and Yreka Police Officer Jeremy Potter conducted a scheduled routine probation search of defendant's residence. Defendant was present during the search.

Besides conducting a routine search, Officer Villani was interested in searching defendant's home because she had received reports from Child Protective Services that there were children at the residence, which, if true, would violate a term of defendant's probation.

Officer Villani found a small locked gray box inside a cupboard. She also located a key to the box inside a small bowl on a counter near where she found the box. She gave the box to Sergeant Tharsing, who opened the box. Inside were five hypodermic syringes, a mirror with names and phone numbers written on it, a plastic bag with one corner cut off, a measuring cup of the type used for medicine, a spoon with cotton reside stuck to it, straws, a ripped matchbox cover, and some Q-tips with some of the cotton missing from the tips.

Defendant denied the box was his. He claimed he did not know why the box was in his trailer. Defendant did not appear to be under the influence of any controlled substances at the time of the search, and tests performed on him two days later for the presence of drugs were negative.

None of the items recovered in the box were tested for the presence of controlled substances. The phone numbers written on the mirror did not match ...


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