P. v. Tyus

Filed 3/22/06 P. v. Tyus CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Deldon Tyus's probation was modified based on a trial court finding that he committed a crime while on probation. Tyus argues that the finding was not supported by substantial evidence. He also argues that the trial court's order that he submit samples for DNA profiling is a violation of his Fourth Amendment rights. We disagree and affirm.

Factual & Procedural Background

On November 16, 2004, Tyus pled guilty to possession of cocaine base. Imposition of sentencing was suspended and he was placed on three years' probation. As a condition of probation, the court ordered Tyus to provide samples for DNA profiling, as required by Penal Code section 296. On June 16, 2005, the court administratively revoked probation after Tyus was arrested on suspicion of auto burglary. Following a hearing, the court found that Tyus violated his probation. The court reinstated him on probation with the added condition he serve six months in county jail.

Discussion

I. Sufficiency of Evidence of Probation Violation

Tyus argues there was insufficient evidence to establish a violation of his probation.

Probation is an act of clemency that may be withdrawn if the privilege is abused. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) A court may revoke and terminate probation â€