(Super. Ct. Nos. CM033457 & CM033616)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Randall Allen Sexton was convicted in case Nos. CM033457 and CM033616 of possessing methamphetamine and was placed on Proposition 36*fn1 probation. After he admitted violating probation, the trial court revoked his probation and sentenced him to prison.
On appeal, defendant contends the trial court erred in sentencing him to state prison after only his first violation of
Proposition 36 probation, and challenges the court's finding that he impliedly refused drug treatment probation by failing to enroll and participate in a drug treatment program as required by his probation. Defendant also claims entitlement to one additional day of conduct credit, a claim with which the People agree.
We shall order the judgment amended to include an additional day of conduct credit, and shall affirm the judgment as modified.
In case No. CM033457, defendant pled guilty to possessing methamphetamine; in case No. CM033616, he pled no contest to the same charge.
At a hearing held on July 20, 2010,*fn2 the trial court placed defendant on three years of formal probation for his two possession offenses pursuant to section 1210.1 (Proposition 36), on various terms and conditions. The court ordered defendant: to report to behavioral health at 8:00 a.m. on July 26; to report to his probation officer at 8:00 a.m. on July 28; to appear at a review hearing before the court on August 5; to refrain from use and possession of controlled substances; to attend 12-step program meetings once a day; and to enroll in a substance abuse class, and participate in and complete a drug treatment program.
Defendant was two hours late for his July 26 behavioral health intake appointment; it was rescheduled for 8:00 a.m. on August 2, but defendant failed to appear. When defendant also missed his probation department indoctrination appointment on July 28, a petition was filed alleging that these two omissions constituted violations of probation.
The hearing on the petition was set for August 5, at the same time as defendant's probation review. He failed to appear for either; consequently, his probation was revoked and a bench warrant issued. Defendant did not report to his probation officer for supervision thereafter, nor did he report to the behavioral health center. On September 16, defendant sought help for his bipolar disorder and drug problem from Feather River Tribal Health Patient Services, but he ...