Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 5905221 & 5909486, Arlan L. Harrell, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Dawson, J.
FACTS AND PROCEDURAL HISTORY
On July 12, 2005, a complaint was filed in case No. F05905221-8, charging appellant Rogelio Santoyo Avalos, Jr., with possessing amphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), giving false information to a police officer (Pen. Code, § 148.9, subd. (a); count 2), and violating a protective order (§ 166, subd. (c)(1), count 3). On July 27, Avalos was advised of and waived his rights, pled guilty to count 1, and waived his right to a presentence probation report and agreed to immediate sentencing. The remaining counts were dismissed, and he was placed on probation pursuant to section 1210.1 (Prop. 36), on various terms and conditions, including that he attend no less than three A.A. or N.A. meetings per week.
Further statutory references are to the Penal Code unless otherwise stated.
On December 27, 2005, a complaint was filed in case No. F05909486-3, charging Avalos with inflicting corporal injury on a spouse or cohabitant after having suffered such a conviction within seven years (§ 273.5, subd. (e); count 1), disobeying a court order (§ 166, subd. (a)(4); count 2), and possessing a smoking device (Health & Saf. Code, § 11364; count 3). On January 3, 2006, Avalos was advised of and waived his rights, pled no contest to count 1, and admitted the prior conviction allegation. The remaining counts and an open misdemeanor case were dismissed. On February 1, imposition of sentence was suspended and Avalos was placed on three years’ formal probation, on condition, inter alia, that he serve 365 days in jail; enroll in, participate in, and complete a long-term residential treatment program; and not use or possess any controlled substances or alcoholic beverages.
On March 1, 2006, Avalos’s probation in case No. F05905221-8 was revoked. On May 12, he was found ineligible for Proposition 36 probation; that condition was deleted, and Avalos was reinstated on probation, as modified.
On August 14, 2006, Avalos’s probation in case No. F05909486-3 was revoked for failure to attend the required number of A.A. or N.A. meetings. On August 21, Avalos was advised of and waived his rights, and admitted violating his probation in both cases. The court revoked probation, then reinstated it on the same terms and conditions (including enrollment and participation in, and completion of, a long-term residential treatment program), modified to provide that Avalos serve 60 days in jail.
On September 5, 2007, probation was revoked in both cases based on allegations Avalos had been out of contact with his probation officer, failed to appear for probation appointments, was terminated from his substance abuse program, used or possessed alcoholic beverages, and tested positive for ethanol. Avalos denied the allegations, and a contested hearing was held on October 1, 2007.
Evidence presented at the hearing showed that conditions of Avalos’s probation included that he obey all laws, not consume alcohol or drugs or be in a place where he could consume alcohol, and submit to drug testing. On July 17, 2007, Avalos tested positive for alcohol and ethanol, a metabolite of alcohol. Since that time, he failed to submit to weekly drug testing. He did not appear for a scheduled appointment with his probation officer on July 27, 2007, and a letter she sent him, rescheduling the appointment, was returned as undeliverable. The probation officer contacted Avalos by telephone and he agreed to appear on August 28, but failed to do so. When Avalos was arrested on August 30 for violating his probation, he was carrying a bottle of beer and smelled of alcohol.
In addition, Avalos completed the Poverello House substance abuse treatment program as directed. Because the program did not offer an aftercare component, however, he was referred to Las Palmas to complete a 26-week substance abuse counseling program. He enrolled in that program on April 12, 2007, but, on July 16, left his probation officer a message that he would not be attending the program due to inability to pay. He was terminated on July 18, 2007, after he violated the program’s attendance policy by missing four sessions, two of which were consecutive. All told, he completed 10 of the 26 sessions that were ordered.
Avalos testified that he completed the Poverello program, and had since remained drug-free. Because Poverello House did not have an aftercare program, however, his probation officer recommended that he go to Las Palmas Counseling for their six-month aftercare program. He enrolled and completed about two months of the program, but did not finish due to lack of money. He was working for his brother-in-law and being paid in cash, but his probation officer said it was not a legitimate job and that he needed to get a job where he would receive a paycheck. She recommended he go to Workforce Connection for assistance, but they were not much help. Avalos then decided to go to Labor Ready; he had been working there for about a month when he ended up in custody.
With respect to the positive alcohol test, Avalos admitted suffering a relapse. He tried to make arrangements with his probation officer for his appointments, and also to get help financially so he could finish the counseling program, but ultimately he missed program sessions because he could not pay. That led to him being dropped. He also missed some of his drug and alcohol tests because he did not have money to pay for them.
The trial court found true the allegations that Avalos violated the terms of his probation by failing to appear for his probation appointments, being terminated from the Las Palmas program, and using alcohol. It expressly rejected his testimony that he asked for, but was not given, help with his financial problems.
In light of Avalos’s criminal history, the court found he was not a suitable candidate for probation. In case No. F05909486-3, the court sentenced him to the middle term of four years in prison, awarded credits totaling 622 days, imposed a restitution fine in the amount of $800 pursuant to section 1202.4, subdivision (b), imposed but stayed a restitution fine in the same amount pursuant to section 1202.45, and terminated the criminal protective order in light of the denial of probation. In case No. F05905221-8, the court imposed a concurrent two-year middle term, awarded credits totaling 627 days, imposed a restitution fine in the amount of $400 pursuant to section 1202.4, subdivision (b), imposed but stayed a restitution fine in the same amount pursuant to section 1202.45, imposed a lab fee in the amount of $50 pursuant to Health and Safety Code section 11372.5, subdivision (a), and ordered Avalos to register with local law enforcement pursuant to Health and Safety Code section 11590. In both cases, Avalos was further ordered to provide specimens and prints pursuant to section 296.
The court noted that this was Avalos’s second violation of probation in each of the two cases; that the domestic violence conviction constituted his third domestic violence-related conviction; and that the drug case constituted his fourth alcohol- or drug-related conviction and his second felony conviction for drugs.
Avalos filed a timely notice of appeal.
DISCUSSION
Avalos’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court independently to review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes appellate counsel’s declaration that he advised Avalos that he could file his own brief with this court. By letter dated February 21, 2008, we invited Avalos to submit additional briefing. He has not done so.
Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.