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The People v. Robert Martin Mcneese

October 17, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT MARTIN MCNEESE, II, DEFENDANT AND APPELLANT.



(Super. Ct. No. NCR77893)

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

P. v. McNeese 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Robert Martin McNeese, II, pled guilty to transportation of a controlled substance with a prior serious felony conviction. (Health & Saf. Code, § 11379, subd. (a); Pen. Code, §§ 667, subd. (b), 1170.12, subds. (a)-(d).)*fn1 The trial court placed defendant on probation pursuant to Proposition 36. (§ 1210 et seq.) Two months later, the district attorney petitioned for revocation of probation based on three violations of probation. Defendant admitted one violation in failing to show up at an appointment to schedule his community service. The court revoked defendant's probation and sentenced him to six years in prison.

On appeal, defendant contends (1) the trial court erred in revoking his probation for a drug-related violation of probation, and (2) even if the violation was not drug related, the trial court erred nonetheless because it did not understand that it had discretion to return defendant to Proposition 36 probation.

We agree that the trial court failed to exercise its discretion to determine whether to return defendant to Proposition 36 probation for a non-drug-related probation violation. Thus, we reverse the judgment.

BACKGROUND

According to the Tehama County Sheriff's arrest report that served as the factual basis for defendant's plea, he was driving a pickup truck when stopped by a sheriff's deputy for lack of a current vehicle registration decal. The deputy observed defendant attempt to hide something under the front seat. A search of defendant's person yielded a bag containing 0.8 grams of methamphetamine. Defendant admitted the bag belonged to him but stated that the drug was only for his personal use.

As part of a negotiated plea, defendant admitted felony transportation of a controlled substance and a prior serious felony conviction. (Health & Saf. Code, § 11379, subd. (a); §§ 667, subd. (b), 1170.12, subds. (a)-(d).) The plea bargain called for defendant to be placed on Proposition 36 probation with a stipulated eight-year prison term if he violated probation. Accordingly, the trial court placed defendant on Proposition 36 probation with various terms and conditions.

Two months later, the Tehama County District Attorney filed a petition for revocation. Although the petition was titled "First Violation," it actually alleged three instances in which defendant violated terms of his probation. Specifically, the petition alleged that defendant (1) failed to report to his probation officer, (2) failed to appear for a scheduling appointment with the community service officer in order to fulfill his community service requirement, and (3) was terminated from a Proposition 36 treatment program for failing to return after being granted a leave of absence.

Defendant admitted that he failed to complete 40 hours of community service as required for his probation. The court revoked probation and ordered the probation department to prepare a supplemental report.

At the sentencing hearing, defense counsel asked that defendant be returned to Proposition 36 probation during the following colloquy:

"[Defense counsel]: [¶] . . . [¶] We are asking the Court to look at this Defendant one last time, to give him one last opportunity to provide to the Court proof that he can successfully complete probation. He can go down and do his community service, get it done, and still be productive here in society, and follow the terms and conditions outlined by this Court. [¶] And we are asking the Court to follow that and grant -- give him a grant of probation in this particular matter.

"THE COURT: [Defense counsel], aren't my hands tied? These are non-Proposition 36 violations. He has a strike. He's not eligible for probation other than ...


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