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People v. Bunn

California Court of Appeals, Fourth District, Second Division
Jul 14, 2008
No. E044744 (Cal. Ct. App. Jul. 14, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. FSB050143 & FCH07851. Douglas M. Elwell, Judge.

Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

RAMIREZ, P. J.

Defendant Brian Carey Bunn appeals following the revocation of his probation in two separate cases. As a result of the revocation, defendant is currently serving two concurrent four-year terms in state prison for one count of commercial burglary in case No. FSB050143, and one count of commercial burglary in case No. FCH07851.

FACTUAL AND PROCEDURAL BACKGROUND

In case No. FSB050143, defendant was charged with commercial burglary after being caught by police about 2:30 a.m. running from a cell phone business (the first case). (Pen. Code, §459.) He was wearing multiple layers of different colored clothing and admitted to acting as a lookout for two individuals who broke into the business. By information, an allegation was added charging defendant had previously served a prison term within the meaning of section 667.5. Pursuant to a plea agreement, defendant admitted the burglary and was sentenced to four years in state prison consisting of the upper term of three years, plus an additional, consecutive one-year term as a result of the prior prison term. However, execution of the sentence was suspended, and probation was granted for a period of 36 months.

All further statutory references are to the Penal Code unless otherwise stated.

While he was on probation in the first case, defendant was again arrested and charged in case No. FCH07851 with a commercial burglary after being caught running from a clothing store with merchandise he had not purchased (the second case). (§ 459.) The complaint was later amended to add count 2, petty theft with a prior in violation of section 666, as well as a prior prison term within the meaning of section 667.5, subdivision (b), and a prior serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).

Pursuant to a plea agreement, defendant pled guilty to the burglary and the prior prison term charged in the second case. As part of the plea agreement, the petty theft and the prior strike allegation were dismissed. Defendant was sentenced to a four-year term in state prison consisting of the upper term of three years for the burglary plus an additional, consecutive one-year term for the prior prison. However, execution of sentence was suspended, and defendant was placed on probation for three years, subject to various terms and conditions, including 365 days in county jail. When defendant pled guilty in the second case, he also admitted violating his probation in the first case, and the court revoked but reinstated probation.

Next, defendant was charged with violating two of the conditions of his probation in both cases. First, it was alleged that defendant violated the break no laws condition of his probation because he was arrested on July 10, 2007, and charged with criminal threats in a new case. Second, it was alleged that defendant violated his probation conditions by failing to enroll in a substance abuse treatment program and provide proof to his probation officer.

On October 17, 2007, the trial court held an evidentiary hearing on the alleged probation violations in both the first and second cases. The court heard testimony from a probation officer who investigated the alleged violations. Defendant presented no affirmative defenses or witnesses but explained to the court he was unable to comply with all of his conditions because he was trying to work two jobs and raise several children on his own. Based on the evidence, the court concluded defendant violated the conditions of his probation in both cases. On October 31, 2007, the trial court terminated probation in both cases and sentenced defendant in accordance with the previously imposed but suspended sentence of four years in each case. The court stated that the two 4-year terms were to be served concurrent to one another.

Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. As possible areas of inquiry, appellate counsel suggested two issues: (1) whether there is sufficient evidence to support the trial court’s finding defendant violated the terms of his probation, and (2) whether the trial court abused its discretion in declining to reinstate probation based on mitigating circumstances and the minor nature of the violations. By order filed April 18, 2008, we granted defendant 30 days to file supplemental briefing, but we received no reply. Based on our independent review of the record, we affirm.

DISCUSSION

Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) To determine whether a probationer has violated the terms and conditions of probation, trial courts apply a preponderance of the evidence standard of proof. (Id. at p. 447.) An appellate court will not disturb the trial court’s decision absent an abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417.)

Here, the record shows defendant’s probation conditions in both cases included a break no laws provision. Pursuant to Evidence Code section 452, the trial court took judicial notice defendant was convicted on August 16, 2007, in a new criminal case (No. MSB7023) of making criminal threats in violation of Penal Code section 422. The probation officer then testified he interviewed defendant, and defendant admitted the violation but said he did not report it to the probation department because he knew he was facing prison time.

In the first case, the conditions of defendant’s probation further stated he must participate “in a counseling program as directed by the probation officer, submit monthly proof of attendance and/or successful completion to the probation officer as directed.” In this regard, the probation officer testified defendant was directed to “attend NA/AA classes two times a week.” In the second case, the conditions of defendant’s probation stated he must “[e]nroll in the Drug Treatment Program at direction of probation officer, and show proof of enrollment to the Probation Officer within seven (7) days,” and “[a]ttend NA/AA two (2) times per week and show proof of attendance to the probation officer.” The probation officer testified defendant did not submit proof of attendance to the probation department and admitted he did not attend any NA/AA meetings because “he was trying to get his life together working two jobs” and “just didn’t have time for it.” Although not specifically charged as a violation, the probation officer further testified defendant had not made any payments at all on his restitution fines and had an outstanding balance of $3,167.78. In sum, there is sufficient evidence to support the trial court’s finding defendant violated the terms of his probation.

In addition to the probation officer’s testimony, the court had before it a probation report filed September 4, 2007, which demonstrated defendant had a long criminal history. He had previously been given numerous opportunities to comply with probation conditions and to lead a law-abiding life, but he had failed to do so. As a result, the trial court was justified in concluding defendant would be unable to succeed if given yet another opportunity through reinstatement of his probation. Despite the existence of the mitigating factors raised by defendant and his counsel during the evidentiary hearing, we cannot conclude the trial court abused its discretion when it terminated probation and sentenced defendant in accordance with the previously imposed but suspended sentences of four years in each case. Our independent examination of the entire record revealed no other arguable issues exist.

DISPOSITION

The judgment is affirmed.

We concur: McKINSTER, J., GAUT, J.


Summaries of

People v. Bunn

California Court of Appeals, Fourth District, Second Division
Jul 14, 2008
No. E044744 (Cal. Ct. App. Jul. 14, 2008)
Case details for

People v. Bunn

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRIAN CAREY BUNN, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 14, 2008

Citations

No. E044744 (Cal. Ct. App. Jul. 14, 2008)