P. v. Woody

Filed 7/21/06 P. v. Woody CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Judge. Affirmed.

Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Promevitus Woody appeals from judgment entered sentencing him to prison for four years following revocation of probation. He previously pled guilty to selling marijuana (Health & Saf. Code, 11360, subd. (a)) and admitted two prior convictions within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).)[1] He contends there was insufficient consideration given to evidence of his mental disease or defect and the court's finding, therefore, that he was in violation of probation and imposition of a four-year prison sentence was an abuse of discretion. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On February 20, 2003, appellant was placed on probation for three years upon various terms and conditions, including that he serve 365 days in county jail, less credits, pay a restitution fine of $200 pursuant to Penal Code section 1202.4, subdivision (b) and a lab analysis fee of $50 pursuant to Health and Safety Code section 11372.5. Additionally, he was to report to his probation officer within 48 hours after release from custody.

On May 27, 2003, a report regarding a technical violation of probation was prepared indicating appellant had been released from county jail on April 16, 2003, and as of the date of the report had failed to report or contact the probation department. Appellant was preliminarily found in violation of probation and a bench warrant was ordered.

On May 5, 2005, at a contested probation revocation hearing, probation officer Dan Matsunami testified that upon review of appellant's probation file, there was no indication that appellant ever reported to the probation department. Additionally, during a conversation with appellant, which was video taped, appellant admitted using marijuana after he had been released from custody. During this 15-minute conversation, appellant told Officer Matsunami that he was schizophrenic and bipolar and took medication and that he becomes confused when he is off his medication. He said he had not been receiving medication while he was out of jail and on probation and that was why he failed to report to the probation department. He said that should he be given another chance, he would do his best to report to the probation department. It was Officer Matsunami's recommendation that appellant be given another chance and be reinstated on probation. Officer Matsunami never verified whether appellant had the problems he indicated or whether he would â€