Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS062119
Mihara, J.
In 2006, defendant Juan Padilla Omar Cortez’s pregnant 15-year-old live-in girlfriend disclosed that defendant had been engaging in sexual intercourse with her since she was 14 years old. Defendant, who was 23 years old at the time of the disclosure, was charged with felony unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (d)). He pleaded guilty on condition that he be placed on felony probation. However, he failed to appear for sentencing, and his whereabouts were unknown until he was arrested in 2008. In 2008, the court suspended imposition of sentence and placed defendant on probation with various conditions including that he serve 105 days in jail with credit for 75 days served.
In March 2010, defendant got upset because his girlfriend was talking on the phone, and he grabbed his girlfriend’s hand and took her phone away. When his girlfriend walked away, defendant tried to “grab” her. This event was followed by a verbal argument between defendant and his girlfriend. The girlfriend had previously seen defendant with a gun. She went to her mother and told her mother that defendant had hit her in the head with a gun. Her mother called the police and told defendant to leave the residence.
The police arrived and detained defendant. The girlfriend told the police that defendant had a handgun, but she did not know where it was. She said she had last seen it a month earlier. Defendant consented to a search of his car. The police found a loaded handgun in a backpack in the trunk of defendant’s car. The backpack also contained a box of ammunition for the handgun. Defendant was arrested.
The probation department alleged that defendant had violated his probation by carrying a concealed firearm (Pen. Code, § 12025), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and committing an assault with a firearm (Pen. Code, § 245, subd. (a)(2)). Defendant was also criminally charged in a new case with these violations.
Defendant filed a motion seeking to have the hearing on the alleged probation violations delayed until after a jury trial on the new criminal charges. He contended that holding the probation violation hearing prior to the trial would force him to choose between his right to testify at the hearing and his right to avoid incriminating himself at the pending trial. However, the case upon which he relied resolved the potential conflict by holding, “as a judicial rule of evidence, ” that a probationer’s testimony at a probation violation hearing could not be used at a subsequent trial except for impeachment or rebuttal. (People v. Coleman (1975) 13 Cal.3d 867, 889.) The new criminal case was subsequently dismissed. However, the new criminal case was refiled with the addition of a count for possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)). A new notice of probation violations was filed based on the new refiled criminal case.
The court ordered the probation violation hearing to be heard in conjunction with the preliminary examination in the new criminal case. Defendant again filed a motion requesting that the probation violation hearing trail the new criminal case. The prosecution opposed the motion on the ground that Coleman did not support the request. It pointed out that the California Supreme Court had subsequently held that “a probationer’s rights are not impaired by reason of the timing of his revocation hearing.” (People v. Jasper (1983) 33 Cal.3d 931, 935 (Jasper).) “Whether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court.” (Ibid.) The court denied the motion.
At the consolidated preliminary examination and probation violation hearing, the court found that defendant had violated his probation by possessing the firearm and ammunition. Defendant subsequently pleaded no contest to multiple counts in the new criminal case. The court suspended imposition of sentence and placed him on probation. At the same time, defendant’s probation in the earlier case was revoked and reinstated on the same terms and conditions except that he was ordered to serve 365 days in jail and given credit for 365 days served. Defendant timely filed a notice of appeal from the court’s order revoking and reinstating his probation in the original case.
Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf but has failed to avail himself of the opportunity. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.