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People v. Hinkel1/11/2005
CERTIFIED FOR PUBLICATION
Pursuant to a negotiated plea agreement, defendant Bruce Hinkel pleaded no contest to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a)), and driving an unregistered vehicle (Veh. Code, § 4000, subd. (a)). The court deferred entry of judgment and ordered defendant to participate in a drug treatment program. (Pen. Code, § 1000 et seq.; all unspecified statutory references are to the Penal Code.) After defendant's probation officer filed a notice of unsatisfactory diversion and moved for entry of judgment on defendant's prior plea, defendant requested and was found eligible for "Prop. 36" probation. (§ 1210.1.) As a condition of his probation, defendant was, again, ordered to participate in a drug treatment program.
Thereafter, defendant participated in the required drug program but was "terminated from treatment for unacceptable behavior by making a threat to the group facilitator" two classes short of completion of the after-care portion of the program. Even so, the trial court allowed him to enroll in a different program so that he could attend the two group sessions he needed to complete the drug treatment program. After attending the final two sessions, defendant petitioned the court to dismiss the charges, expunge his conviction and terminate his probation pursuant to section 1210.1, subdivision (d). The trial court denied the petition without prejudice to renewing it in the future, finding "there is no reasonable cause to believe the defendant will not abuse controlled substances in the future."
Defendant appeals the court's order, contending (1) the trial court applied an incorrect legal standard in denying his petition, (2) the trial court's failure to apply the correct legal standard violated his plea agreement, and (3) the trial court abused its discretion in denying his petition. Because we find the trial court applied the correct legal standard in ruling on defendant's petition and did not abuse its discretion in denying it, we affirm the order.
Facts and Proceedings
On March 23, 2000, defendant pleaded no contest to possession of cocaine base, being under the influence of cocaine and driving an unregistered vehicle. Defendant was placed on probation and ordered to participate in a drug treatment program under the deferred entry of judgment program (§ 1000 et seq.).
On October 5, 2001, defendant's probation officer filed a notice of unsatisfactory diversion and moved for entry of judgment on defendant's prior plea, alleging defendant failed to provide proof of completion of a drug treatment program and failed to pay certain fines and fees. Defendant requested and was found eligible for "Prop. 36" probation.
On January 25, 2002, defendant was convicted of the underlying offenses and placed on "Prop. 36" probation for a period of five years. As conditions of his probation, defendant was required to participate in a drug treatment program, to refrain from the use of controlled substances unless prescribed by a physician, and to submit to urine testing for alcohol and illegal substances.
In February 2002, defendant enrolled in a drug treatment program and received positive feedback at his progress review hearing before the trial court on June 7, 2002. At the progress review hearing on September 16, 2002, the court noted defendant tested positive for a controlled substance in August 2002.
On December 16, 2002, defendant's probation officer petitioned the court to revoke defendant's probation, alleging defendant violated probation by using methamphetamine and be
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