Opinion
E075058
12-02-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN ARIAS, Defendant and Appellant.
David Dworakowski, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17003010) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge. Affirmed. David Dworakowski, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant John Arias was charged by information with possession for sale of a controlled substance. (Health & Saf. Code, § 11378, count 1.) The information further alleged that he suffered three prior felony convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c), and that he had served seven prior prison terms (Pen. Code, former § 667.5, subd. (b)). Defendant entered a plea agreement and pled no contest to count 1 and admitted one of the prison priors. In exchange, the court sentenced him to three years on count 1 and one year on the prison prior, for a total of four years in county prison. However, it suspended execution of the sentence and placed him on probation for three years under specified conditions. It also dismissed the remaining allegations. The court subsequently found defendant in violation of his probation and imposed the previously suspended sentence.
Defendant filed a timely notice of appeal. We affirm.
PROCEDURAL BACKGROUND
On December 8, 2017, defendant entered a plea agreement and pled no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11378, count 1) and admitted that he served one prior prison term (Pen. Code, §667.5, subd. (b)). The court sentenced him to a total of four years in county prison. However, it suspended execution of the sentence and placed him on probation for three years under specified conditions, including that he violate no law and report to the probation officer in person upon release from custody. Defendant was released from custody on December 8, 2017.
On January 30, 2018, defendant was convicted of receiving a stolen vehicle (Pen. Code, § 496d) in Los Angeles County and sentenced to 16 months in county prison.
On January 31, 2018, the San Bernardino County Probation Department filed a petition for revocation of probation, alleging that defendant failed to report to the probation officer upon being released from custody on December 8, 2017, and his whereabouts were unknown.
On September 25, 2018, the probation officer filed a supplemental report and recommended that even though defendant failed to report to the probation department upon his release from custody, he should have his probation reinstated. The report mentioned that defendant had a new law violation in Los Angeles County on January 28, 2018.
On October 2, 2018, the court held a hearing and stated it was puzzled by the probation officer's recommendation since defendant had a four-year prison sentence "hanging over his head" and a long criminal record; he also failed to report to probation and was recently convicted of a felony in Los Angeles County. The court stated, "[W]hen you take a suspended sentence, and you commit a felony . . . it would have to be a miraculous circumstance to not give the suspended sentence." Defense counsel attempted to negotiate with the court for defendant to receive custody credits for his time served on the felony in Los Angeles County. Defense counsel suggested the court hold a Vickers hearing. The court said it wanted to see the police report from Los Angeles and asked the prosecutor to get a copy of it. Defendant informed the court that the conviction was in Pomona.
The court held a hearing on November 7, 2018. It stated that the suspended sentence should be imposed, especially in light of defendant's conviction in Los Angeles County. Defendant did not want to admit the violation of probation, so the court set a Vickers hearing.
The court held the Vickers hearing on November 16, 2018. At the outset, the court stated that the prosecution was amending the revocation petition to add the violation of law allegation and noted that it did not see a due process issue since it was something the parties had known about for a while. A probation officer then testified that defendant was released from jail on December 8, 2017, was required to report to the probation department immediately after release or within 48 hours, and failed to do so. The officer testified that defendant never reported to the probation department in this case. He also testified that defendant admitted that he had a new law conviction out of Pomona.
Defendant testified on his own behalf. He said he did not report to probation when he was supposed to because he was high. As to his conviction out of Pomona, defendant said he was dating a girl who drove the car up to him and asked him to drive. He had the car for about three or four days. Defendant said he did not know it was stolen. On cross-examination, defendant admitted that he pled guilty to the conviction out of Pomona on January 30, 2018, and was sentenced to 16 months. He said he was on felony probation in the instant case at the time he pled guilty.
After hearing testimony and arguments, the court found there was ample evidence that defendant failed to report and violated the law, as evidenced by the fact that he pled guilty in the case from Pomona. Thus, the court found him in violation of his probation. It then found that probation was not appropriate, noting defendant's numerous prior convictions and prison terms served. The court also found his testimony about receiving the stolen car not credible. It then sentenced him to the previously suspended term of four years in county prison, with credit for time served.
On March 18, 2020, this court granted defendant's writ of habeas corpus under In re Benoit (1973) 10 Cal.3d 72 to file a notice of appeal within 20 days.
Defendant filed a notice of appeal on March 20, 2020.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and the following potential arguable issues: (1) whether the evidence supported the trial court's finding that defendant violated his probation; (2) whether the court denied defendant his due process rights to notice and an opportunity to be heard when it permitted the prosecution to amend the revocation petition at the hearing to include the violation of law allegation, without giving written notice; and (3) whether the court abused its discretion by imposing the previously suspended four-year sentence. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. SLOUGH
J.
People v. Vickers (1972) 8 Cal.3d 451 (Vickers).