P. v. Felix

Filed 3/27/06 P. v. Felix CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Melinda Reed, Judge.

Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On November 15, 2004, in Tulare County case No. VCF132915 (case No. 1), a jury convicted Francisco Felix, Jr., of receiving stolen property (Pen. Code, § 496, subd. (a);^[1] count 1), a felony, and resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1); count 2), a misdemeanor. On November 17, 2004, in Tulare County case No. VCF133239 (case No. 2), another jury convicted appellant of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a felony. At a sentencing hearing covering both cases, the court placed appellant on three years' formal probation in each case. In addition, in case No. 2, the court imposed a county jail term of 185 days and granted presentence custody credits of 162 days, consisting of 108 days of actual time credits and 54 days of conduct credits, and in case No. 1, the court imposed a county jail term of 185 days on count 1, to be served consecutively to the term it imposed in case No. 2. The court imposed no jail time on count 2 in case No. 1.

On appeal, appellant contends the court violated the Substance Abuse and Crime Prevention Act of 2000 (§ 1210 et seq.), commonly known as Proposition 36, by failing to place appellant on probation under Proposition 36. We will vacate the sentence and remand for resentencing.

FACTUAL BACKGROUND

Case No. 1

On August 28, 2004, Tulare County sheriff's deputies, investigating a report of a break-in of vehicles at a recreational vehicle dealership in Visalia, encountered appellant, who was seated in a car. There was a television set on the seat beside appellant and he was attempting to cover it with a sheet. A deputy told appellant he (appellant) was under arrest; appellant fled on foot; and deputies were unable to apprehend him. A subsequent search of appellant's residence revealed property stolen from the vehicle dealership.

Case No. 2

On September 1, 2004, Tulare County Sheriff's Deputy Richard Ramirez went to the area of Road 305 and Ivy in Goshen, for the purpose of arresting appellant. Deputy Ramirez encountered appellant, handcuffed him and conducted a patsearch. During the patsearch the deputy observed a baggie fall to the ground near appellant's right foot. Subsequently, the contents of the baggie were analyzed and found to be .19 grams of a substance containing methamphetamine.

Appellant's Criminal History

According to the report of the probation officer (RPO), as a juvenile, between 1997 and 1999, appellant suffered adjudications of felony vandalism, burglary,^[2] petty theft, being under the influence of a controlled substance and violating section 415.^[3] Appellant was placed on probation for each of these offenses, some of which resulted in probation violations. Appellant also committed at least three noncriminal probation violations. Following his last probation violation as a juvenile, he was committed to the California Youth Authority.

As an adult, in 2004 appellant suffered convictions of petty theft and providing false identification to a peace officer. He was placed on two years' summary probation and ordered to serve 10 days in county jail.

DISCUSSION

Proposition 36 was adopted by the voters of California in November 2000 and, in general, mandates probation without incarceration for specified drug offenses. â€