Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF120058, Craig Riemer, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Kenoth Raymond Bishop appeals following imposition of a previously suspended sentence upon a revocation of probation. Defendant had previously been convicted by a jury of a felony, resisting an executive officer. (Pen. Code, § 69.) A four-year sentence was imposed, but execution of the term was suspended pursuant to a grant of probation. Subsequently, defendant was convicted of misdemeanor violations and his felony probation was revoked. The sentencing court ordered that the previously suspended sentence be imposed.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In 2006, defendant was convicted by jury of obstructing or resisting an executive officer (§ 69), a felony, and he admitted he had been previously convicted of a felony and served a prison term. (§ 667.5, subd. (b).) The trial court imposed the upper term of three years for the substantive offense, and an additional year for the prison prior enhancement, for a total of four years in state prison, but execution of the sentence was suspended. Defendant was placed on probation for those crimes.
There is no record of the felony conviction although this appeal was taken from the sentence imposed after probation was revoked in that case. Even the probation report, prepared following defendant’s misdemeanor conviction, fails to include information about the suspended sentence in the underlying case, other than to list the conviction in the summary of defendant’s criminal record. Because the record is not clear as to the actual sentence that was imposed in 2006, for which execution was suspended, we have taken judicial notice of the trial court’s docket. (Evid. Code, §§ 452, subd. (d), 459.)
On April 23, 2007, defendant was charged with various misdemeanors, including drunk driving (Veh. Code, § 23152, subd. (a)), battery on a peace officer (§ 243, subd. (b)), assault on a peace officer ([former] § 241, subd. (b) [currently renumbered as § 241, subd. (c)]), and resisting or delaying an officer (§ 148, subd. (a)), in case No. INM176949. The misdemeanor complaint included notice that a violation of probation had been filed in the current case based on the allegations of the misdemeanor complaint.
The felony probation revocation proceedings trailed the misdemeanor case. The jury in the misdemeanor case hung on the drunk driving count, but convicted the defendant of the remaining three counts on October 17, 2007. On November 20, 2007, the court found defendant had violated probation. Prior to sentencing the defendant on the probation revocation matter, the court ordered an evaluation to determine if his mental health issues would warrant reinstatement of probation. (§ 1203.03.) The report prepared pursuant to that evaluation recommended that probation be denied.
At the sentencing hearing relating to the violation of probation, the court declined to reinstate probation, ordering that the previously imposed sentence of four years be put into full force and effect. Defendant appealed.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. 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 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record. Although the notice of appeal indicates that this appeal is taken following a contested probation revocation hearing (ref. People v. Vickers (1972) 8 Cal.3d 451), the record does not include a contested probation revocation proceeding. Instead, after the defendant was convicted in the new misdemeanor case, the court found defendant in violation of probation on November 30, 2007. Although there was no contested hearing, defendant had adequate notice of the alleged violation, and his conviction in the misdemeanor case (case No. INM176949) constitutes a violation of the terms of defendant’s probation as a matter of law. (§ 1203.2, subd. (a).) There is substantial evidence to support the revocation of probation.
Upon finding that the defendant was in violation of probation, the court had the discretion to either reinstate the defendant on probation on the same or modified terms (§ 1203.2, subd. (b)), or to order that the judgment shall be in full force and effect. (§ 1203.2, subd. (c).) Because the original grant of probation was made after suspending execution of a specified prison term, the court had no discretion to impose a different sentence. (Cal. Rules of Court, rule 4.435(b)(2).) In any event, any claim that the trial court abused its discretion in calculating the length of the sentence that was imposed in 2006 has been waived by failing to timely appeal at the time the term was initially imposed and execution was suspended. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1425.)
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P. J., Miller J.