P. v. Oliva

Filed 1/17/07  P. v. Oliva CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Eric M. Nakata, Judge.  Affirmed.

            ORIGINAL PROCEEDING; petition for writ of habeas corpus.  Eric M. Nakata, Judge.  Petition denied.

            Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, and Charles Ragland, Deputy Attorney General, for Plaintiff and Respondent.

1.  Introduction[1]

            This appeal involves the propriety of an aggravated sentence -- an additional one year that has already been served -- imposed after a contested probation revocation hearing.

            In August 2004, the People filed a probation revocation petition after defendant was found in possession of a bow and arrow, a small desiccated quantity of marijuana, and some inert souvenir grenades from the Vietnam War.  After the revocation hearing, the court imposed the aggravated sentence of three years in state prison, instead of the middle term of two years.[2]

            Defendant appeals, challenging the use of the upper term.  We also consider a related petition for writ of habeas corpus.  (E040609.)  We conclude the trial court erred in its use of the upper term.  But we cannot hold there was ineffective assistance of counsel as urged by defendant because a more favorable outcome was not reasonably probable.  We affirm the judgment on appeal and deny the petition.

2.  Factual and Procedural Background

            In March 1997, the police seized 75 marijuana plants from defendant's locked greenhouse.  Six years later, in April 2003, defendant pleaded nolo contendere to one count of cultivating marijuana in violation of Health and Safety Code section 11358.  Defendant was granted probation.  In a previous appeal (People v. Oliva (Dec. 29, 2004, E035143, pp. 6-9, [nonpub. opn.]), we rejected defendant's contention that he should be permitted to use marijuana for medical reasons while on probation.  (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Bianco (2001) 93 Cal.App.4th 748, 753.)

            Defendant's birth date is September 20, 1948.  In the original probation report, dated May and June 2003, defendant's criminal record was described as follows:  1) a misdemeanor burglary conviction in Omaha in December 1965, â€