Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 197786
McGuiness, P.J.
On April 23, 1992, appellant Walter Swan was convicted of violating Penal Code section 288, subdivision (b). He was placed on probation and ordered to register as a sex offender. On June 23, 2005, a felony complaint was filed alleging appellant had violated Penal Code section 290, subdivision (a)(1)(D) by failing to update his registration within five working days of his birthday. According to records of the probation department, appellant had last registered on March 22, 2004, and his birthday was on February 19. As of March 17, 2005, appellant was no longer living at his last stated address, and his whereabouts were unknown. On January 10, 2006, appellant waived his rights and pleaded guilty to failure to register (Pen. Code, § 290, subd. (a)(1)(D)). Pursuant to a negotiated disposition, imposition of sentence was suspended and appellant was placed on supervised probation for three years with the condition (among others) that he serve 90 days in county jail or in the Sheriff’s Work Alternative Program.
On November 14, 2006, the prosecution moved to revoke probation based on an incident in which appellant allegedly threatened a victim with a knife. The matter proceeded to a contested hearing on January 4, 2007. Shaun Rodgers, the floor coordinator for a homeless shelter in San Francisco, testified that he was working at the front desk of the shelter around 11:15 on the morning of November 10, 2006, when he observed appellant come in. Rodgers knew appellant because appellant had stayed at the shelter for two or three months before, and it appeared to Rodgers from appellant’s walk and speech that appellant was intoxicated. Appellant approached one of the shelter’s clients named China, who had been standing in the front office doorway talking with Rodgers. After greeting the staff, appellant asked China for a cigarette. She said no, and appellant asked her for money, which she also refused. Appellant responded, “ ‘I’ll cut you, bitch,’ ” and China backed away from him, holding up both hands and making a motion as if to push him away. Rodgers thought appellant was joking around until he saw that appellant was holding a knife close to China’s neck. It was a folding knife with a two to three inch blade, and Rodgers had never seen appellant with it before. Appellant held the knife to China’s neck, saying “ ‘I’ll cut you’ ” but laughing as he did so. He put the knife away when Rodgers and another staff member told him to stop and then walked outside. Rodgers called the police at China’s request, and appellant was still standing outside the door when they arrived.
Rodgers testified that China is a transgender individual who is biologically male. The trial court permitted some cross-examination about China’s gender but questioned the relevance of the topic.
Appellant testified that he had drunk “about seven” malt beers on the morning of November 10, 2006, before he went to the shelter. He saw China when he arrived and started talking to her. Appellant denied asking China for money, stating he had about seven or eight dollars in his possession that day. At first they were joking around, but appellant noted the jokes “went out of hand” because he had been drinking. Appellant admitted he pulled out a knife but said he put it away and walked outside when he saw that China got scared. He was not angry and never intended to hurt China. Appellant denied having a drinking problem and said the probation department had never suggested he attend Alcoholics Anonymous meetings.
Based on evidence presented at the hearing, the trial court found a violation of probation had been established, and the matter proceeded to a sentencing hearing on February 9, 2007. Although the probation department recommended that probation be revoked and sentence imposed, and the court expressed concern about the potentially serious nature of the offense and appellant’s denial of having a problem with alcohol abuse, the court ultimately granted appellant’s request to reinstate probation but imposed certain conditions. First, appellant agreed to permanently waive his 60 days of prior custody credits and provisionally waive the 93 days of custody credits he accrued during the revocation proceedings. Second, the court imposed a one year county jail sentence and ordered appellant to serve it in the Resolve to Stop Violence Project (RSVP). Additional standard conditions of probation were imposed, including that appellant participate in whatever additional counseling deemed necessary by the probation department.
A month later, on March 8, 2007, the court held a follow-up hearing because it had been notified appellant was refusing to participate in RSVP. Defense counsel represented that appellant became ill with anxiety attacks after he entered the program. She requested that appellant receive psychological counseling at the Center for Special Problems. The court continued probation and ordered appellant to finish his one year sentence in county jail, noting appellant could work with the probation department to find suitable counseling after his release. On March 29, 2007, appellant filed a notice of appeal from the February 9, 2007, orders modifying probation.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. In addition, appellant has had an opportunity to file a supplemental brief with this court, but he has not done so. We have reviewed the entire record, and we conclude no issue warrants further briefing.
DISPOSITION
The judgment is affirmed.
We concur:, Pollak, J., Siggins, J.