Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA06989. Cynthia Rayvis, Judge.
Trisha Newman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Michelle Fellows appeals from the judgment entered after she was found in violation of probation. Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by felony complaint with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); an enhancement for committing the offense for the benefit of a gang was also alleged (Pen. Code, § 186.2, subd. (b)(1)(C)). On February 3, 2009, midway through the preliminary hearing, defendant pled no contest to assault by means likely to produce great bodily injury in exchange for which the gang enhancement was stricken and she was placed on 36 months formal probation without additional jail time.
Defendant was arrested 15 months later on May 10, 2010. At the formal probation violation hearing on October 25, 2010, a police officer testified that he was on patrol in a marked “Park Ranger” vehicle in Manhattan Beach’s Polliwog Park when he observed a male and female near the Rose Gazebo hugging and kissing “like two teenagers in love.” But when the officer got closer he saw that there was a considerable age difference between the two people. The officer recognized the male as David McFarland, whom the officer knew from a prior encounter was about 15 years old; the officer estimated that the female was in her mid to late 30’s. The officer questioned McFarland about the relationship and McFarland admitted defendant was his girlfriend and that they had been having sex for almost one year. The officer reported the information to the watch commander.
Jason Knickerbocker was one of three police officers to respond to the dispatch about a juvenile and an adult detained in the park. In a recorded interview with Knickerbocker and another officer, Zebowski, defendant admitted having sex with McFarland on multiple occasions. But when Knickerbocker interviewed defendant at the jail the next day, she recanted.
McFarland testified that he was friends with defendant’s son and had known defendant for five or six years. On May 10th, while walking with her and her dog in the park, he put his arm around defendant’s shoulder but there was nothing romantic or sexual about it. McFarland denied ever engaging in any sexual conduct with defendant and denied telling a police officer that defendant was his girlfriend.
Defendant testified that she had known McFarland and his family for five or six years. She denied ever having a sexual relationship with him. Defendant gave three versions of how she came to be in the park with McFarland on May 10th. First, she testified that she was walking her dog in the park when she encountered McFarland, whom she had not seen for several months. Second, she testified that she and McFarland were together at her house in Carson before she drove them to the park. And third, she testified that she picked up McFarland at his home in Lennox because he asked to go with her to the park to walk her dog. Defendant recalled that, at the park that morning, she plugged in her phone to charge at the gazebo and then walked the dog. McFarland hugged her with one arm. They did not kiss on the lips or on the cheek. The park ranger who initially approached them did not interview defendant except to ask her age; another officer arrived and spent about five minutes asking her about drugs. When Knickerbocker interviewed her, defendant did not tell him that she was in a sexual relationship with McFarland. At the jail the next day, defendant reiterated to Knickerbocker that she was not having a sexual relationship with McFarland.
Observing that the officers’ testimony was more credible than that of defendant and McFarland, the trial court found defendant in violation of probation and sentenced her to two years in prison on the underlying aggravated assault charge. Defendant timely appealed.
We appointed counsel to represent defendant on this appeal. After examination of the record, appointed counsel filed an opening brief on March 30, 2011, which did not raise any arguable issues and which requested that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436. On that date we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Defendant did not submit any contentions.
We have examined the entire record and are satisfied that appointed counsel has fully complied with her responsibilities and that no arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J.GRIMES, J.