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The People v. Hector Pizano

July 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HECTOR PIZANO, JR., DEFENDANT AND APPELLANT.



(Super. Ct. No. 08-CR-13491)

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

P. v. Pizano

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Hector Pizano, Jr., appeals from the order revoking, and then reinstating, his probation following a conviction for possession of methamphetamine. He contends the "highly irregular conduct" of the proceedings conducted on the violation of probation petition violated his due process rights. Alternatively, he contends defense counsel's acquiescence in those proceedings constituted ineffective assistance. We disagree with both contentions and affirm the judgment.

BACKGROUND

Defendant pled guilty in January 2008 to felony possession of methamphetamine, and was placed on five years' formal probation. Among the terms and conditions of his probation, defendant was required to serve 90 days in jail, and 90 days in an alternative sentencing work program; report to Amador County probation authorities; consent to testing for controlled substances (with the understanding that "fail[ing] to submit to testing or a positive test shall constitute a violation of probation"; and abstain from possessing or using any controlled substance.

A petition to revoke defendant's probation and supporting declaration were filed in March 2009.*fn1 The probation officer declarant stated (on information and belief) that defendant had violated his probation in that "he failed to observe good conduct and to obey all laws, he failed to report to the Probation Department, he failed to serve a jail sentence, he failed to complete the Alternative Sentence Program in lieu of jail, he possessed a controlled substance, he failed to consent to testing for controlled substances . . . ."

Specifically, the petition alleged that on February 22, 2008, defendant was ordered to complete the Alternative Sentence Program "in lieu of 90 days in jail. The defendant was ordered to complete the days at any non-profit organization and submit proof of completion to the Probation Department by January 5, 2009. [¶] To date, no proof of completion has been received. The defendant has completed zero hours of work."

The petition further alleged that on January 17, 2009, defendant (among other crimes) possessed a controlled substance and refused to provide a urinalysis test.

A jury trial was held on the drug possession charge; after the jury hung in favor of acquittal, the prosecution moved to dismiss the criminal charges that underlay the drug possession grounds for revoking defendant's probation and a hearing was set on the balance of defendant's alleged violations of probation.

In view of defendant's challenge to the probation revocation proceedings, we quote from them at some length. At the first hearing, defense counsel spoke first, announcing that he had reviewed documents with the prosecution, and stating that "we deem the probation violation hearing to have commenced. We've already addressed some of the issues. I'd like to go through those and see which ones we addressed that require no further -- the first allegation is the violation of all those Health and Safety Codes. That was the trial we did. I don't know what I could possibly add, other than an argument that you can anticipate, so I think that one we can skip . . . . That's done.

"THE COURT: All right.

"[DEFENSE COUNSEL]: You're perfectly well able to decide that on what's before the Court.

"THE COURT: I heard the trial.

"[DEFENSE COUNSEL]: Yes, your Honor. On the second issue that my client did not provide a urinalysis, I would concede that's true, but we offered some explanation in mitigation. And, so, insofar as that issue in the petition, we're done with that one. The ...


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