Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary Ferrari, Judge. Los Angeles County Super. Ct. No. NA077216
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance on behalf of Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant, Joseph Conto, appeals after he pled nolo contendere to two counts of making felony criminal threats (Pen. Code, § 422) and admitting that he had served two prior prison terms for felonies (§ 667.5, subd. (b)). On May 1, 2008, the trial court sentenced defendant to five years and eight months in state prison. The court suspended execution of the sentence and placed defendant on formal probation for three years on condition that defendant serve 141 days in county jail. Defendant was awarded 141 total custody days consisting of 95 days of actual custody plus 46 days of conduct credit. Defendant was ordered to pay a restitution fine of $200 (§ 1202.4, subd. (b)) and a $20 court security assessment fee (§ 1465.8, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
On June 23, 2009, defendant was convicted of two misdemeanors: resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)) and driving without a license (Veh. Code, § 12500). On August 13, 2009, the trial court found defendant in violation of the terms of his probation due to the section 148 conviction. The court sentenced defendant to five years and eight months in state prison. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole restitution fine (§ 1202.45). Defendant was ordered to pay a $20 court security fee. The trial court awarded defendant a total of 268 days of credit.
We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised. Instead, counsel requested this court to independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On January 7, 2010, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wishes us to consider. On January 20, 2010, defendant filed a letter brief in which he asserted: the public defender, who represented defendant at the probation revocation hearing, refused to make a telephone call to a different attorney who represented defendant; the same trial judge, who placed him on probation, should not have been presided over the probation revocation hearing; defendant was not allowed to see the probation report; and he had participated in some drug abuse programs and sober living situations during formal probation.
Defendant initially asserts the judgment should be reversed because the attorney representing him at the probation revocation hearing did not make a telephone call for defendant. Defendant is presumably arguing he was denied effective assistance of counsel due to a failure to act in certain way. The record on appeal contains no explanation as to why it was necessary to call a different attorney or how it had any bearing on the probation revocation hearing. “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211; People v. Burgener (2003) 29 Cal.4th 833, 880; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Defendant was allowed to speak at the probation hearing. Defendant could have asserted any claims he had at that time. In any event, defendant has not shown it is reasonably probable that, but for counsel’s alleged omission, the result of the proceeding would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; People v. Ray (1996) 13 Cal.4th 313, 349; In re Avena (1996) 12 Cal.4th 694, 721.)
There is also no merit to defendant’s assertion the judge handling the probation revocation proceeding must be different than the judge who originally imposed the sentence. To the contrary, it is “entirely proper” for the same judge to handle both the trial and post-trial proceedings. (See People v. Osslo (1958) 50 Cal.2d 75, 104 [it is “entirely proper” for post-trial proceedings to be heard by the same judge who tried the matter even though judge may not make an order that the proceeding be heard by him or her]; People v. Martinez (2005) 127 Cal.App.4th 1156, 1159-1161 [same]; People v. Batt (1994) 24 Cal.App.4th 1044, 1048 [same].) More specifically, no such rule prohibits the same judge, who granted probation, from presiding over the probation revocation hearing. (Ayala v. Municipal Court (1982) 137 Cal.App.3d 484, 487-488 [there is no rule prohibiting the same judge, who granted probation, from hearing the probation revocation matter]; see also People v. Madrigal (1995) 37 Cal.App.4th 791, 795 [probation revocation may be handled by any judge of the court].)
Equally without merit is the contention that reversal is required because defendant did not see the probation report. A probation report was prepared for the original sentencing hearing on May 1, 2008. On July 7, 2009, the trial court granted defense counsel’s request for the preparation of a supplemental report for the August 13, 2009 probation revocation hearing. Defendant was represented by counsel at the probation revocation hearing. Nothing in the record suggests that defense counsel did not actually receive the probation report. (§ 1203.) Moreover, defendant has not indicated how he was prejudiced by the purported failure to show him the probation report. (People v. Middleton (1997) 52 Cal.App.4th 19, 36, disapproved on a different point in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3.) Defendant seems to assert that the report fails to adequately assess his participation in some drug treatment programs. But, the trial court revoked probation in this case after judicially noticing that defendant had been convicted of two misdemeanors on June 23, 2009. The trial court specifically stated that the probation was revoked due to the section 148 conviction for resisting, obstructing or delaying a peace officer. The trial court indicated it was well aware of the circumstances of the case. At one point during the probation hearing, defendant attempted to blame his defense attorney for failing to advise defendant of the conditions of his probation. The trial court told defendant that defendant was responsible for his own conduct in violating probation by violating section 148. It is clear that his probation was revoked for the section 148 conviction; and, there is no likelihood that defendant could have said or done anything to change the sentencing even if he was given the report. (People v. Middleton, supra, 52 Cal.App.4th at p. 36.)
Defendant pled nolo contendere to two counts of making criminal threats on May 1, 2008. The court was required to impose a $20 court fee for each conviction. (§ 1465.8, subd. (a)(1) [effective July 28, 2009 the mandatory fee became $30 per conviction]; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.) The judgment must be modified to reflect a $20 court security fee as to each conviction for a total of $40.
We have examined the entire record and are satisfied that defendant’s appellate attorney has fully complied with his responsibilities and that no argument exists favorable to defendant. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is modified to reflect a total of $40 in court security fees. The judgment, as modified, is affirmed. Upon remittitur issuance, the superior court clerk shall amend the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: MOSK, ACTING P. J., KRIEGLER, J.