Cushway

OPINION Michael Cushway (appellant) pled guilty in 1984 to possessing heroin (Health Saf. Code, § 11350 ), and was sentenced to state prison for the aggravated term of three years; but execution was suspended and he was placed on probation with one condition being that he possess no drugs without a prescription. Eighteen months later and while still on probation, he was charged with possession of heroin for sale (Health Saf. Code, § 11351 ); the district attorney moved to revoke probation. At the hearing following summary revocation, evidence was admitted consisting of (1) the probation officer's testimony that appellant had been arrested four times during probation; (2) the arresting officer's testimony regarding the events of appellant's latest arrest; and (3) the chemist's testimony that the substance seized from appellant was heroin. The court ordered that appellant's probation remain revoked, and it lifted the suspension of the previously imposed state prison term. Appellant does not claim that the People failed to meet their burden of showing by clear and convincing evidence that he was in violation of his probation. Nor does he claim that the court failed to adequately…

I concur in the judgment on the sole basis that the imposition of a previously suspended prison sentence following revocation of probation is not a sentencing choice requiring a statement of reasons within the meaning of Penal Code section 1170 , subdivision (c), and rule 405(f) of the California Rules of Court. Appellant's petition for review by the Supreme Court was denied September 30, 1987. *Page 781

Michael Cushway (appellant) pled guilty in 1984 to possessing heroin (Health & Saf. Code, § 11350), and was sentenced to state prison for the aggravated term of three years; but execution was suspended and he was placed on probation with one condition being that he possess no drugs without a prescription. Eighteen months later and while still on probation, he was charged with possession of heroin for sale (Health & Saf. Code, § 11351); the district attorney moved to revoke probation.

At the hearing following summary revocation, evidence was admitted consisting of (1) the probation officer’s testimony that appellant had been arrested four times during probation; (2) the arresting officer’s testimony regarding the events of appellant’s latest arrest; and (3) the chemist’s testimony that the substance seized from appellant was heroin. The court ordered that appellant’s probation remain revoked, and it lifted the suspension of the previously imposed state prison term.

Appellant does not claim that the People failed to meet their burden of showing by clear and convincing evidence that he was in violation of his probation. Nor does he claim that the court failed to adequately…