Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Super.Ct.Nos. FBA007190 & FSB052623
Mark Ankcorn, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Lamont Mars Pope appeals the revocation of his probation in two separate cases (Nos. FBA007190 & FSB052623). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 2, 2003, defendant pled “no contest” in case No. FBA007190 to committing a lewd act upon a child under the age of 14 years. The parties stipulated to the preliminary hearing as a factual basis for the plea. Pursuant to the plea agreement, the court imposed a suspended sentence of six years in state prison and granted probation for a period of five years, subject to various terms and conditions, including drug treatment and AIDS education. The court warned defendant his guilty plea would require him to register as a sex offender.
On October 18, 2005, defendant was charged with failure to register as a sex offender in case No. FSB052623. (Pen. Code, § 290, subd. (g)(2).) As a result of these new charges, defendant’s probation officer also petitioned the court to revoke probation in case No. FBA007190. Pursuant to a written plea agreement, defendant pled guilty on July 6, 2007, to the new offense of failure to register and was granted probation for a period of 36 months. Thereafter, he admitted to a violation of his probation in case No. FBA007190, and probation was reinstated.
All further statutory references are to the Penal Code unless otherwise indicated.
On November 1, 2008, a third felony complaint was filed against defendant in Case No. FSB804440, alleging assault with a firearm (§ 245, subd. (a)(2)) and assault with a deadly weapon (§ 245, subd. (a)(1)). This led to the filing of petitions for the revocation of defendant’s probation in the two earlier cases (Nos. FBA007190 & FSB052623).
On August 21 and 28, 2009, the court held an evidentiary hearing on the petitions to revoke defendant’s probation. The court heard testimony from several witnesses, including defendant, two victims, and two responding police officers. At the hearing, a responding police officer testified he was dispatched about 3:00 a.m. to interview the victim of an assault. At the scene, he interviewed Adam Bennefield (Bennefield), who was “very upset” and had injuries to his forehead and his left eye. The officer observed blood covering the left side of the victim’s face, cuts on the victim’s eyebrow, and an injury to his forehead that was about two inches in diameter and swollen.
Bennefield testified he drove a friend, Joseph Corella (Corella) home that night. Another friend, Robert Cooper, was also in the car. They got out of the car when they arrived at Corella’s residence and went to talk to a neighbor, Brandon Bruce (Bruce). According to Bennefield and Corella, Bruce and defendant were both standing outside when they arrived.
Corella and Bruce got into an argument, and Bruce pulled out a pistol and hit the left side of Bennefield’s forehead with it. Then, defendant punched Bennefield three times on the left side of his face near his eyebrow. Defendant and Bruce continued the attack, both repeatedly punching him in the face, and he was unable to get away. At the same time, his friend, Corella, was involved in a fight with another individual. Robert Cooper went inside Corella’s house to get help. Bennefield and Corella also headed toward the house; at that time, someone fired a gun. Although he did not actually see anyone point and fire the gun, he believes it was Bruce who fired the gun; he saw the gun in Bruce’s hand and in his front pocket.
Defendant testified he was visiting his uncle on the evening in question. He was lying on the couch. Cameron, who lived there, came inside the house, grabbed his gloves, and indicated there was going to be a fight outside. Defendant watched from inside and then went outside to try to break up the fight and get everyone to leave. His main reason for going outside was to protect Cameron. He denied punching anyone during the incident and claimed Bennefield was able to get away because he pushed Bruce off of him. Defendant also said he “hit the gun down” toward the ground when Bruce tried to shoot at Corella and Bennefield. He was unsure why he had been implicated in the case and told police he was a victim. During cross-examination, the prosecutor impeached defendant’s credibility with a prior theft conviction and with the prior conviction for a lewd act on a child.
After defendant’s testimony, Bennefield was recalled to testify. He said defendant has a very distinctive appearance, so there is no way he could be mistaken in his belief that defendant punched him in the face. He was also able to identify defendant during an in-field lineup. At no time did he see defendant attempting to break up the fight.
After the presentation of evidence, the court found the testimony of Bennefield and Corella to be credible. Based on the evidence, the court concluded defendant was involved in the fight and was not merely trying to break it up. As a result, the court found defendant in violation of the break no laws condition of his probation.
On September 4, 2009, the court terminated probation and imposed the previously suspended sentence of six years in the original lewd conduct case (No. FBA007190). In the failure to register case (No. FSB052623), the court imposed a concurrent sentence of two years.
Defendant filed a notice of appeal on September 24, 2009. We appointed counsel to represent defendant on appeal. On April 6, 2010, appellate counsel filed an ex parte motion to correct presentence credits in the trial court. The motion challenges the calculation of presentence credits awarded in the failure to register case (No. FSB052623). According to defendant, the court erroneously limited his presentence credits in the failure to register case to 15 percent under section 2933.1, subdivision (c). He believes he is entitled to “regular credit” at the higher rate provided in section 4019, subdivision (f), on this offense because it is nonviolent. The trial court summarily denied defendant’s motion on April 6, 2010.
Although the trial court summarily denied defendant’s ex parte motion, we note that defendant’s argument has been soundly rejected by courts considering the same or similar issues. (See, e.g., In re Reeves (2005) 35 Cal.4th 765, 772-776; People v. Nunez (2008) 167 Cal.App.4th 761, 764-768; People v. Ramos (1996) 50 Cal.App.4th 810, 817.) Section 2933.1, subdivision (c), applies to the offender not to the offense. As a result, a violent felon’s credits for presentence confinement are limited to 15 percent regardless of whether or not all of the offenses are violent. (Ramos, at p. 817.)
DISCUSSION
In his notice of appeal filed September 24, 2009, defendant indicated he wished to challenge the trial court’s finding he violated his probation in case Nos. FBA007190 and FSB052623. He also requested a certificate of probable cause to contest the validity of his guilty pleas in these cases. The trial court granted his request for a certificate of probable cause on September 28, 2009.
Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. On May 4, 2010, we offered defendant an opportunity to file a personal supplemental brief, which he failed to do. We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., KING J.