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The People v. Elaine Grace Garvey

October 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ELAINE GRACE GARVEY, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CM030999, CM027785)

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

P. v. Garvey

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Elaine Grace Garvey pled no contest to child endangerment (Pen. Code,*fn1 § 273a, subd. (a)) and was sentenced to four years in state prison. She contends on appeal that the trial court abused its discretion in finding hers was not an unusual case where the interests of justice would best be served by a grant of probation.

We conclude the trial court appropriately exercised its discretion in sentencing defendant to prison. We affirm the judgment.

BACKGROUND

In August 2007, defendant, representing herself as a nurse from "Dr. Keech's" office, called in to a pharmacy a prescription for "Lortab," a schedule-3 controlled substance. Defendant said the prescription was for a "Diana Knight." The pharmacy manager contacted Dr. Keech's office to confirm the prescription and discovered the ruse. When defendant arrived at the pharmacy to pick up the prescription, the police questioned her. Defendant admitted to the police that she attempted to pick up Knight's prescription but she denied phoning it in.

Defendant was arrested and charged in Butte County Superior Court case No. CM027785, with obtaining a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)) and commercial burglary (§ 459). Defendant subsequently entered a negotiated plea pursuant to which both counts were reduced to misdemeanors in exchange for defendant's no contest plea. Defendant was sentenced to three years probation and ordered to serve 45 days in county jail.

In March 2009, law enforcement conducted a probation search of the residence defendant shared with her eight-year-old daughter. During the search, law enforcement discovered a "broken glass smoking pipe in two separate trash cans and a syringe with a metal spoon and cotton balls stuck to it under a sink." A sample of the daughter's hair was taken and later "tested positive for methamphetamine exposure."

On July 8, 2009, defendant was charged in Butte County Superior Court case No. CM030999 with child endangerment in violation of section 273a, subdivision (a). Defendant pled not guilty and was released on her own recognizance "with conditions."

On July 24, 2009, while defendant was out of custody, police responded to a noise complaint at a mobile home park. Police arrived and found defendant sitting in a parked vehicle with an adult male. A probation search was conducted on defendant and a "capped" hypodermic needle that appeared to have been used was found in her purse. Defendant refused to answer when she was asked why she had the needle.

Defendant was cited and released for possessing a hypodermic needle; she was later charged in Butte County Superior Court case No. SCR73629 with possessing a hypodermic needle in ...


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