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The People v. Kerry Carlton Atkins

May 30, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KERRY CARLTON ATKINS, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F4778)

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

P. v. Atkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kerry Carlton Atkins appeals the trial court's revocation of Proposition 36*fn1 probation and imposition of a state prison sentence. Defendant claims the court committed reversible error in allowing him to represent himself without proper admonishment. He also claims the court abused its discretion when it rejected the recommendation of the probation department. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and another individual were arrested after sheriff's deputies observed them acting suspiciously in a parked pickup truck in a Jamestown parking lot. The deputies found three methadone pills in the bed of the truck. Defendant admitted being in possession of a pipe used for smoking methamphetamine and two small baggies containing 0.9 grams (combined) of methamphetamine.

Defendant pled guilty on November 30, 2009, in Tuolumne County Superior Court to one count of possession of methadone in exchange for dismissal of the remaining charges. The court suspended imposition of sentence, admitted defendant to Prop. 36 probation for five years subject to specified terms and conditions, and ordered that the case be transferred to Calaveras County, defendant's county of residence.

Three and one-half months later, the probation department filed a petition to revoke and modify defendant's probation based on his alleged failure to abstain from use of a controlled substance after he tested positive for methamphetamine on March 9, 2010. Defendant, appearing on his own behalf on March 18, 2010, admitted the violation. The court reinstated defendant on Prop. 36 probation on the same terms and conditions with "intensified treatment."

Ten days later, the probation department filed a second petition to revoke and modify defendant's probation based on his alleged failure to abstain from using controlled substances after he tested positive for methamphetamine on March 15, 2010, and March 23, 2010. On April 1, 2010, defendant again appearing without counsel, admitted the violation. The court reinstated him on Prop. 36 probation on the same terms and conditions with "intensified treatment."

Five months later, the probation department filed a third petition to revoke or terminate probation based on defendant's alleged failure to abstain from using controlled substances after he tested positive for methamphetamine on June 21, July 15, 19, 22, and August 3, 2010.

On August 19, 2010, defendant, again appearing on his own behalf, admitted the alleged violations.

At the September 16, 2010, sentencing hearing, the defendant was still without counsel but was admonished of his right to appointed counsel. The court acknowledged receipt of a probation report which recommended defendant's admission to the drug court program and, "[i]f [defendant] refuses Drug Court, or if he is found ineligible for Drug Court, it would be recommended he be sentenced to two years state prison." Noting defendant's prior performance on Prop. 36 probation, and questioning whether the drug court program in Calaveras County could provide defendant anything not already provided by Tuolumne County's drug court program, the court terminated probation, found the circumstances in aggravation outweighed those in mitigation, and sentenced defendant to the upper term of three years in state prison.

Defendant filed a request to modify his sentence. The court appointed counsel on defendant's behalf, and counsel filed a motion to recall the sentence. The district attorney's "response to motion to recall sentence" was filed the day prior in anticipation of defendant's motion.

After hearing the testimony of several witnesses on defendant's behalf, the court again expressed concern that "there's really nothing in our program that is any different then [sic] the Tuolumne County program" and denied defendant's motion to recall the sentence. Defendant filed a timely notice of appeal.

DISCUSSION

I

Right To Counsel

Defendant claims he never unequivocally stated his request to represent himself, nor did he knowingly, intelligently and voluntarily waive his right to be represented by counsel at the probation revocation hearings and sentencing. As we shall explain, the record as a whole demonstrates defendant gave a valid waiver of his right to counsel.

A

The ...


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