Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR-05-6354S
Marchiano, P.J.
Following a contested hearing in which defendant Christopher Canfield was charged with violating the terms of his probation, the trial court revoked his probation and ordered the execution of the previously suspended sentence of three years in state prison. The opening brief filed by defendant’s appellate counsel raises no issues and asks this court for an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant has been afforded an opportunity to file a supplemental brief and has not done so. After reviewing the record, we find no meritorious issues to be briefed or argued and affirm.
Background
On October 30, 2005, police officers stopped defendant for driving erratically in the Samoa Dunes recreation area near Eureka. After determining that the vehicle had been reported stolen a few days earlier, they arrested defendant for vehicle theft. Defendant was found to be in possession of several grams of cocaine following a search incident to the arrest. The owner of the vehicle later reported that it had been her sole means of transportation and had been ruined: it was inoperable, its hood, doors, and other parts had been removed or stripped, the body had been spray painted black, and the vehicle could not even be sold for parts.
The facts are drawn from a probation report filed on January 18, 2006.
A complaint filed December 15, 2005, charged defendant with the commission of seven offenses. There were three felony counts related to defendant’s arrest on October 30, 2005: vehicle theft (Veh. Code, § 10851, subd. (a)), transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)). The complaint also charged three counts of misdemeanor operation of a vehicle without a valid license (Veh. Code, § 12500, subd. (a)), alleged to have occurred on June 28, July 11, and September 26, 2005, as well as one infraction count for failing to provide proof of vehicle insurance when requested to do so by a police officer at the scene of an accident on July 11, 2005 (Veh. Code, § 16028, subd. (c)).
Defendant pleaded guilty to the charge of vehicle theft, conditioned on a grant of probation. The trial court advised defendant of his right to a preliminary hearing and a jury trial, and his right to confront and examine witnesses and present evidence in his defense. The judge obtained defendant’s waiver of those rights. He also advised defendant of the upper, mid, and lower term sentences for conviction of vehicle theft, and of his right to have a jury make findings relating to aggravating circumstances before the trial court might rely on such circumstances to impose the upper term sentence and obtained defendant’s waiver of that right. (See Blakely v. Washington (2004) 542 U.S. 296.) The court explained to defendant the restitution and other fines that might be imposed. It also explained that it was dismissing the felony count of possession of cocaine with a Harvey reservation, meaning that it might consider the facts of that dismissed count in formulating defendant’s sentence.
People v. Harvey (1979) 25 Cal.3d 754.
The court then accepted defendant’s plea of guilty to the charge of vehicle theft after obtaining his agreement to the factual basis for the plea, and questioning him to determine that his plea was knowing, voluntary, and intelligent. On motion by the district attorney, the court dismissed the remaining charges, with the above mentioned Harvey reservation.
At the sentencing hearing on January 18, 2006, the court imposed the upper-term sentence of three years in state prison, stating the following aggravating circumstances: that the crime involved an actual taking or damage of great monetary value; that defendant had sustained petitions in juvenile delinquency proceedings that were numerous and of increasing seriousness; and that defendant’s previous performance on probation had been unsatisfactory. (Cal. Rules of Court, rule 4.421(a)(9) & (b)(2), (5).) The court then suspended execution of the upper-term sentence and placed defendant on formal probation for a period of four years. It adopted the terms proposed in the probation report as the terms of defendant’s probation. These terms required defendant, among other things, to obey all laws and to abstain totally from the use of alcoholic beverages and not have such in his possession. The terms also included imposition of three restitution fines of $600 each, pursuant to Penal Code sections 1202.4, subdivision (b), 1202.44, and 1202.45, as well as a victim reimbursement fine of $3,865.10 pursuant to Penal Code section 1202.4, subdivision (f), and a discretionary fine of $250, pursuant to Penal Code section 672. The minutes of the sentencing hearing indicate that defendant understood and accepted the terms of his probation.
Defendant’s probation officer filed a notice of violation on May 23, 2006, alleging that defendant had stolen a boat motor two days earlier. The following month defendant pleaded guilty to a charge of petty theft (Pen. Code, § 666), and admitted his violation of probation in this case. The court reinstated probation in October 2006.
A second notice of probation violation was filed on March 13, 2007, alleging that defendant had violated his probation in that a sheriff’s deputy had arrested him on February 1, 2007, for public intoxication (Pen. Code, § 647, subd. (f)), and assault and battery (Pen. Code, §§ 240, 242). Defendant denied the allegation on March 15. At the contested hearing on April 24, 2007, an employee of the Tip Top Club, located in Humboldt County, testified that defendant and another person were fighting in the parking lot, and defendant later struck him in the arm as he was attempting to call the police. A deputy sheriff then testified that he later interviewed defendant at the scene. Observing that defendant’s speech was “slightly slurred,” his eyes were red, and he “smelled of alcohol,” the deputy concluded defendant “had been drinking but . . . was not overly intoxicated.” The trial court found both witnesses to be credible, and determined that defendant had violated the terms of his probation in that he had committed a battery on the club’s employee and had consumed an alcoholic beverage.
At the sentencing hearing, on June 6, 2007, the trial court revoked and terminated defendant’s probation, and ordered the execution of the previously imposed sentence of three years’ imprisonment, less 33 days for actual custody and 16 days for conduct credit. This appeal followed. (Pen. Code, § 1237, subd. (a).)
Discussion
We have reviewed the entire record. Defendant was represented by counsel at all stages. The court was careful to ensure that defendant understood his rights and the consequences of his guilty plea, and that the plea was voluntary, knowing, and intelligent. We find no sentencing error. Defendant expressly waived his right to a jury determination of aggravating factors, and in any event one basis for the court’s imposition of the upper term was defendant’s recidivism, as reflected by his numerous prior sustained delinquency petitions—a finding supported by the record. The court otherwise imposed proper restitution fines, and awarded appropriate presentence credits. The record indicates that defendant understood and accepted the terms of his probation at the conclusion of his initial sentencing hearing. Substantial evidence supports the court’s subsequent finding of a probation violation. No abuse of discretion appears in the court’s decision to revoke probation and order the execution of the suspended sentence.
Disposition
The judgment is affirmed.
We concur: Swager, J. Margulies, J.