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The People v. Bobby Allen Gunsolley

August 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BOBBY ALLEN GUNSOLLEY, DEFENDANT AND APPELLANT.



Super. Ct. No. 05F177

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

P. v. Gunsolley

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Bobby Allen Gunsolley pled guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and, after violating his probation numerous times, was sentenced to an upper term of three years in state prison.

Defendant appeals, claiming the trial court abused its discretion by relying on his conduct following his last reinstatement on probation to impose the upper term. As defendant failed to make this objection in the trial court and has failed to establish that his trial attorney rendered ineffective assistance of counsel by failing to object on this basis, we reject this claim.

PROCEDURAL AND FACTUAL BACKGROUND

In December 2004 defendant submitted to a consensual search, resulting in the discovery of five baggies, each containing .3 gram of methamphetamine. Defendant denied the methamphetamine belonged to him but admitted methamphetamine use.

In February 2005 defendant pled guilty to possession of a controlled substance and was placed on Proposition 36 probation for three years. Within days of his sentencing, defendant submitted a positive drug test and thereafter did not comply with the other terms of his Proposition 36 probation, resulting in termination of the Proposition 36 probation and placement on three years' formal probation.

Subsequent petitions to revoke defendant's probation based on positive tests for methamphetamine were filed in January and March 2007. Probation was revoked and reinstated on condition that he serve 90 days in county jail and enter the "Addicted Offender Program." Probation was extended to expire in November 2011. Other than a revocation petition alleging alcohol use in September 2007, which was dismissed, defendant did well in this program.

In July 2009, following completion of the Addicted Offender Program, defendant was arrested for driving under the influence of alcohol in Trinity County, and another petition was filed to revoke his probation. In December 2009 defendant had a positive test for methamphetamine, triggering yet another revocation petition. Defendant admitted both allegations.

Defendant had prior felony convictions in 1998 and 2001, respectively, for attempting to elude a police officer and theft, as well as several misdemeanor convictions. These included hit-and-run driving and giving false information to a peace officer in 2006, while defendant was on Proposition 36 probation.

The probation officer recommended a three-year state prison term based on defendant's "prior performance on probation and the numerous interventions and support [he has] been afforded over ...


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