Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 205723.
BANKE, J.
Marshall Qualls appeals from an order finding him in violation of probation and imposing a previously stayed four-year prison sentence. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the order and imposition of sentence. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Qualls was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the order finding Qualls in violation of his probation and imposing sentence.
Background
On or about November 1, 2007, Qualls was charged with one count of second degree commercial burglary (Pen. Code, § 459) and one count of attempted second degree robbery (Pen. Code, §§ 664, 211). It was further alleged he had sustained a prior conviction pursuant to Penal Code section 1203, subdivision (e)(4), prior convictions pursuant to Penal Code sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c), and a prior felony conviction with state prison time pursuant to Penal Code section 667.5, subdivision (b). On June 17, 2008, Qualls pled guilty to the second degree commercial burglary count, and on July 14, 2008, was sentenced to four years in state prison. Execution of sentence was suspended, and Qualls was placed on formal probation for three years, conditioned on serving one year in the county jail.
Almost one year later, on June 18, 2009, the district attorney filed a motion to revoke probation, alleging Qualls had failed to “obey all laws” as required by the terms and conditions of his probation. On October 4, 2009, and November 20, 2009, the court held a contested probation violation revocation hearing.
Diwas Rayamajhi testified that on June 15, 2009, he was walking home in the early morning hours, after dining out and having had approximately four to five drinks over more than a two-hour period. He was a “little bit drunk, ” but steady on his feet. Between Mission Street and Howard Street, a place where there are “a lot of homeless people, ” he was approached and asked for money by a man with a “long beard, long hair, dressed in dirty clothes.” Rayamajhi tried to avoid the man and kept walking. The man followed Rayamajhi for five or ten minutes, and near 5th Street and Howard Street, grabbed him and choked him until he was unconscious. Rayamajhi estimated he was unconscious 25 to 35 minutes. When he regained consciousness, he was lying in the street and his wallet was gone. He still had his cell phone, which was in his front pocket, and called the police.
At about 2:30 a.m., San Francisco Police Officer Arthur Madrid and his partner responded to a dispatch call regarding a robbery. They found Rayamajhi at the scene, “visibly upset.” While he appeared to be under the influence of alcohol, his pants were wet and he appeared “disheveled, ” he was coherent, could speak clearly and appeared able to take care of himself. Officer Anthony Pedroza also responded to the dispatch. Based on the description of the assailant, Pedroza believed it was Qualls, with whom he had had numerous contacts and had seen in the area nearly every night Pedroza worked. Pedroza obtained a photograph of Qualls and took it with him to the scene.
The photograph was shown to Rayamajhi, who immediately identified Qualls as his attacker. “Most of the texture of the beard, the hair color, the eyes, nose, tapered nose, it was exactly like the picture.” Rayamajhi was sure of his identification, identifying the photograph “very excitedly.” Rayamajhi “said he knew-100 percent sure this was the person who had done the crime.” Rayamajhi then went home. The officers proceeded to search for Qualls.
They found him that evening at the St. Vincent de Paul Multiservice Center (Center) on 5th Street. Qualls had shaved and was showing a “5:00 shadow.” Wayne Garnett, an employee of the Center, confirmed Qualls was living there and had had a full beard when he checked in the night of the robbery, but shaved it prior to the arrival of the officers the following evening. After Qualls shaved his facial hair, the employee at first did not recognize him. Officer Pedroza also testified Qualls had had a beard every time he saw him prior to the robbery. Qualls was detained.
That evening the officers also took Rayamajhi for a “cold show” on the steps of the Hall of Justice. Rayamajhi stated Qualls had the same hair, the same eyes, the same tapered nose, the same complexion and was substantially the same height and build. “[B]ut without the beard and the mustache, ” Rayamajhi was “just not sure” he was the man who had attacked him. “The person that robbed me was a homeless guy, dirty clothes, long hair, long beard, long nose, and like smelly... [¶] [a]nd the person that the police officers showed me, he was bathed, nice clothes, without beard, shiny hair, long hair, and it was in the nighttime.” Similarly, at the hearing, Rayamajhi could not positively identify Qualls as his attacker.
Qualls admitted he saw Rayamajhi the night of the attack and asked him for change. He denied choking and robbing Rayamajhi. He claimed he shaved off his beard because he had tried to find a job and due to bug and lice infestations at the Center.
The trial court found Rayamajhi and Garnett credible and Qualls not credible. It therefore found by a preponderance of the evidence that Qualls had willfully violated the terms and conditions of his probation. The trial court refused to restore probation and imposed the previously stayed four-year prison sentence, with 837 days’ credit (559 actual credits and 278 conduct credits). Qualls filed a timely notice of appeal on December 3, 2009.
Discussion
We have reviewed the record and find no arguable issues. Qualls was ably represented by counsel at all times. The trial court did not abuse its discretion in admitting the photograph Officer Pedroza showed Rayamajhi. The trial court’s finding of a probation violation is supported by substantial evidence. And the trial court did not abuse its discretion in refusing to reinstate probation and imposing the previously suspended four-year prison sentence.
Disposition
The order finding Qualls violated his probation and imposing sentence is affirmed.
We concur: Margulies, Acting P. J., Dondero, J.