Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR465445.
Richman, J.
Counsel appointed for defendant Anthony Buentipo has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.
Our examination reveals that around 11:15 p.m. on the night of June 7, 2005, Mike Moses and Alana Weinroth were sitting in the back seat of Moses’s car near the intersection of Caulfield Lane and Weatherby Way in Petaluma, having arrived at the location in separate cars, when someone—later identified as defendant—tapped on the driver’s side rear window. Moses rolled the window down, and defendant said something to the effect of, “You need to leave my neighborhood.” Moses rolled the window back up but shortly after, there was more tapping on the window. He again rolled the window down, and defendant, this time pointing a shotgun about a foot from Moses’s head, said, “You need to leave my neighborhood now.” Moses rolled the window back up and climbed into the front seat, and he and Weinroth fled in his car, leaving her car behind.
Because defendant entered into a negotiated plea agreement prior to trial, we derive these facts from the preliminary hearing transcript and pre-sentencing reports.
Moses and Weinroth immediately notified the police about the assault, and then returned to Weinroth’s car about 25 minutes later. She discovered that her purse and all of its contents had been taken from her car.
Defendant, who matched the description given by Moses and Weinroth and lived across the street from where the incident occurred, was subsequently identified by the police as a suspect. When shown a photographic line-up, Moses identified defendant as the man who pointed the shotgun at him.
On June 10, 2005, Petaluma Police Detective Andrew Urton served a search warrant at defendant’s house, where he found multiple shotgun shells. While he was there, defendant arrived home carrying a backpack. In searching the backpack, Urton found items likely belonging to Weinroth, such as checks written out to her and a day planner that contained her driver’s license. Weinroth later confirmed that they were indeed her belongings.
When asked about the assault on Moses and Weinroth, defendant initially denied he had any kind of weapon or had taken Weinroth’s property. When pressed further, however, he changed his story, admitting that he had come home intoxicated that evening and noticed two cars parked near his house facing an adjacent park. He claimed he became angry because people frequently park there at night to do drugs or have sex. He went into his house, retrieved a shotgun and two shotgun shells, and went back outside. He saw two people in one of the cars and, concealing the shotgun behind his back, knocked on the back window. He told the occupants to leave the neighborhood, and the man inside responded something to the effect of, “We’re almost done, just a minute,” and rolled the window back up. Defendant became more angry and knocked on the window again, this time pointing the shotgun at the occupants and telling them to leave immediately. They then fled.
Defendant then noticed that the other car—that belonging to Weinroth—was unoccupied and unlocked so he opened the door, took a purse that was in the front seat, and went home. The next morning, he went through the purse, finding miscellaneous items such as cash, a credit card, a driver’s license, and gift cards.
Defendant claimed he threw the shotgun into the Petaluma River, but he eventually admitted he still had the gun in his room. A shotgun was later recovered from defendant’s bedroom.
By information filed July 6, 2005, defendant was charged with two counts of felony assault with a deadly weapon (a shotgun) by means of force likely to produce great bodily injury (counts I and II, Pen. Code, § 245, subd. (a)(2)); one count of felony theft with a prior conviction (count III, Pen. Code, § 666); and one count of felony possession of stolen property (count IV, Pen. Code, § 496, subd. (a)). At the time, defendant was on a grant of conditional sentence following a conviction for driving under the influence.
On August 12, 2005, pursuant to a negotiated plea agreement, defendant pleaded no contest to count I with a Harvey waiver on count II. In exchange, the court suspended imposition of sentence, instead granting defendant 36 months formal probation, sentencing him to nine months in county jail, and ordering him to pay various fines. Defendant was subject to the standard terms of probation, including that he refrain from possessing or using alcohol or controlled substances, complete assistance or counseling programs as directed by his probation officer, maintain employment or enroll in an education program, and perform 40 hours of volunteer service.
People v. Harvey (1979) 25 Cal.3d 754.
On July 22, 2006, in the early hours of the morning, defendant was arrested after police officers found him walking in the middle of a road and creating a nuisance. Officers noted that he appeared to be under the influence of alcohol, and defendant admitted having consumed six or seven beers.
On July 25, 2006, defendant’s probation was summarily revoked based on his admission of alcohol use in violation of his probation. He was held without bail and the matter was referred to the probation department.
On July 27, 2006, defendant was released on supervised own recognizance. His release was again subject to standard conditions, including that he refrain from possessing or using any alcohol or controlled substances, enroll in an out-patient substance abuse treatment program, and attend daily Alcoholic Anonymous or Narcotics Anonymous meetings.
On August 31, 2006, the supervised own recognizance release was terminated and probation was reinstated, again subject to the same conditions. Defendant was also sentenced to 45 days in county jail for the probation violation, with a surrender date of October 20, 2006.
On September 6, 2006, probation was again summarily revoked due to another alleged probation violation, and defendant was returned to custody. This time, he denied the violation, and a violation of probation hearing was set for September 27, 2006, with a subsequent continuance to October 11, 2006. On September 8, 2006, defendant was released on supervised own recognizance pending the hearing.
At the October 11, 2006 hearing, defendant admitted that on September 4, 2006, he had consumed alcohol in violation of probation. The court found defendant in violation of probation, but then reinstated probation. The court also sentenced defendant to 15 additional days in county jail, for a total of 60 days, and ordered him to surrender on November 27, 2006.
In violation of that order, however, defendant failed to report on his commitment date, so on December 7, 2006, the court ordered that probation be summarily revoked and a no bail warrant be issued.
On December 12, 2006, defendant was remanded to custody and the warrant recalled. Probation was reinstated, and defendant was ordered to surrender forthwith.
On April 18, 2007, defendant was arrested after a search of his car uncovered a hypodermic needle containing a clear liquid, a plastic bag with a white crystal substance, and a glass cylinder with burnt residue. A new complaint was filed against defendant, charging him with possession of a controlled substance in violation of Health and Safety Code section 11377.
On April 19, 2007, defendant admitted he violated the terms of his probation by failing to complete the required volunteer hours and the substance abuse treatment program, failing to attend Alcoholics Anonymous meetings, and possessing methamphetamine and drug paraphernalia. The court summarily revoked probation.
On July 31, 2007, the court terminated probation as unsuccessful and sentenced defendant to three years in state prison.
This timely appeal followed.
The scope of reviewable issues on appeal after a guilty plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Defendant’s change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
The trial court did not abuse its discretion in terminating defendant’s probation as unsuccessful. (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982.)
Defendant was represented by competent counsel who zealously guarded his rights and interests.
The sentence imposed is authorized by law.
Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.
We concur: Kline, P.J., Haerle, J.