Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 196798-01.
Margulies, J.
Andre Brown appeals from the revocation of his probation. His 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 judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplemental brief with the court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
The court is in receipt of a letter from defendant in which he indicates that he is having difficulty obtaining a copy of the court transcripts. The court notified defendant’s appellate counsel, who responded that on August 8, 2007, prior to filing the Wende brief, he sent defendant a copy of the transcripts.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On September 12, 2005, a felony complaint was filed in the San Francisco Superior Court charging defendant with one count of sale of heroin (Health & Saf. Code, § 11352, subd. (a); count I) and one count of conspiracy (Pen. Code, § 182, subd. (a)(1); count II). As to count I, the complaint alleged that at the time defendant committed the offense he had been released “on bail and on his . . . own recognizance” (Pen. Code, § 12022.1). As to count II, it was alleged that defendant suffered a previous conviction for sale/transportation of a controlled substance (Health & Saf., § 11352, subd. (a)). According to the probation report, defendant sold two balloons of heroin for $20 to an undercover police officer.
On September 22, 2005, defendant waived his right to a trial and pleaded guilty to count I. Count II was dismissed. Imposition of sentence was suspended, and defendant was placed on supervised probation for three years.
On July 28, 2006, the district attorney filed a motion to revoke defendant’s probation based on a “forthcoming probation report” and an attached San Francisco Police Department report. On the same day, defendant’s probation was administratively revoked. The probation revocation was set aside on September 22, 2006, and defendant’s probation was reinstated.
The clerk’s transcript does not contain a copy of the police report attached to the district attorney’s motion. A supplemental probation report was subsequently filed.
On November 14, 2006, the district attorney filed a motion to revoke defendant’s probation based on a recent arrest for battery. Defendant’s probation was administratively revoked and a no-bail bench warrant was issued. The bench warrant was subsequently discharged on December 18, 2006, and defendant was remanded into custody with no bail.
A probation revocation hearing was held on February 2, 2007. Clinton Rogers, III, a chaplain of the San Francisco Rescue Mission, testified that on September 27, 2006, after he conducted a religious service, the mission provided a meal for the needy. Anyone who consumes a meal at the mission is asked to bus his or her tray. As the dining area was clearing out, defendant got up and left his tray sitting on one of the pews. Rogers told defendant to get his tray and bus it. When defendant kept walking, Rogers grabbed defendant’s arm and said, “Hey, come on. Put your tray away.” Defendant reacted by turning around and hitting Rogers on the left side of his jaw. Jamall Turner, a volunteer at the mission, testified that he was washing dishes when to his left, he saw defendant hit Rogers after Rogers asked him to bus his tray. Turner had seen defendant over 30 times previously. Following the battery, Turner told defendant to get out, got a phone from one of the other pastors, and called the police. He slowly followed defendant and stayed on the cell phone until the police apprehended defendant.
At the conclusion of the probation revocation hearing, the court found defendant in violation of his probation. That same day, probation was reinstated on the original terms and modified to include one year in county jail. As a further condition of probation, defendant was ordered to attend and participate in anger management and stay away from the mission. Defendant was awarded 47 days of credit for time served.
DISCUSSION
Trial courts have very broad discretion in determining whether a probationer has violated probation, and an appellate court should interfere with the exercise of such discretion only in a “ ‘very extreme case.’ ” (People v. Rodriquez (1990) 51 Cal.3d 437, 443.) In addition, the facts in a probation revocation hearing are provable by a preponderance of the evidence standard. (Id. at pp. 441–442.) Here the evidence presented at the revocation hearing amply supports the trial court’s finding that defendant committed a battery against Clinton Rogers, and we find no abuse of discretion in the trial court’s subsequent decision to revoke probation. (People v. Self (1991) 233 Cal.App.3d 414, 417 [probation revocation reviewed for abuse of discretion].)
Similarly, the trial court’s decision to impose a one-year county jail sentence is neither “ ‘irrational [n]or arbitrary’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977), and therefore must be affirmed on appeal. (Id. at pp. 977–978 [absent showing that a trial court’s sentencing decision is irrational or arbitrary, the court is “ ‘presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review’ ”].)
Defendant was represented by counsel throughout the proceedings. We find no arguable issues that require further briefing and accordingly, affirm the judgment.
We concur: Marchiano, P.J., Stein, J.