Opinion
A132722
01-03-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANDREW FISHER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR247605)
Michael Fisher appeals from a finding that he violated the terms of his probation and modification of the terms of that probation. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTS AND PROCEEDINGS BELOW
On October 5, 2007, appellant was charged by information with residential burglary (Pen. Code § 459) and making criminal threats. (§ 422) On May 8, 2008, he executed a written plea waiver form and entered a no contest plea to an added count of felony vandalism. (§ 594, subd. (b)(1).) On July 15, 2008, imposition of sentence was suspended and appellant was placed on probation for three years, with various conditions.
All statutory references are to the Penal Code.
Due to appellant's failure to maintain contact with the probation department, a bench warrant issued on May 27, 2011 (all further dates are in that year). Appellant was arraigned on the probation violation on June 15. On June 23, he completed a written waiver of rights form and admitted violating his probation by failing to update his address with the probation department within 48 hours.
In 2008, when probation on the present offense was originally ordered, the probation department recommended a three-year term of probation because appellant "has an insignificant prior record and no history of violence," "[his] prior performance on probation was satisfactory," "[h]is involvement in the present offenses appear to be related to an emotional based situation which showed poor judgment on his part rather than a specific intent to become involved in serious criminal behavior," and "[he] is willing to become involved in counseling/therapy to address both his alcohol and anger issues as a condition of probation."
Three years later, in 2011, after appellant was found in violation of his current probation, the department recommended that all prior orders remain in full force and effect and, additionally, that the term of probation be extended an additional year, to July 21, 2012, the previously suspended 90-day jail sentence be imposed, defendant be directed to report to and comply with all directives of the BHAT program (apparently a substance abuse program) and "submit a minimum of 5 weekly job applications until gainfully employed and provide verification to [the] probation [department]." In making these recommendations, the department considered the facts that this was the second time appellant violated probation, (the first, in September 2008, was for failure to abstain from the use of illegal drugs and alcohol), and it belatedly learned he had previously been convicted (in 2003) for disorderly conduct, by being in a public place under the influence of an intoxicating drug or alcohol (§ 647, subd. (f)), and was convicted in November 2009 for drunk driving. The department also took into account that appellant had resumed use of methamphetamine, marijuana, and alcohol, and failed to maintain gainful employment.
At the July 21, 2011 sentencing hearing, defense counsel essentially asked the court to adopt the probation department's recommendation, and the district attorney concurred. Disagreeing with counsel, the trial court refused to follow the probation department's recommendation. It did so essentially because of (1) the significance it attached to appellant's failure to report his 2009 conviction for drunk driving in Napa County, (2) his continued use of illegal drugs and alcohol, (3) the fact that he failed to report to the probation department even after the department (belatedly realizing he had not been reporting for a long period of time) directed him to report, and, finally, (4) that appellant had repeatedly received "substantial breaks" from the court. The court observed that "Probation's recommendation in this matter is that the Court now simply impose the 90 days that had been suspended back in 2008 for his first violation. So then, in effect, there is no further penalty at all, and I don't agree with that at all. [¶] I don't think Mr. Fisher is at the point of receiving a state prison commitment, but it's clear to the Court that his compliance with the terms of probation has been, as probation concluded, is unsatisfactory."
Accordingly, the court reinstated probation, extended probation for the maximum period of five years, directed that appellant be subjected to drug and alcohol testing, that he serve 180 days in county jail, and that all prior terms and conditions remain in effect.
Timely notice of this appeal was filed on July 21, 2011.
DISCUSSION
Where, as here, an appellant has plead guilty or no contest to an offense, including the violation of a term or condition of probation, the scope of reviewable issues 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.)
The admonitions given appellant at the time he admitted violating probation and waived a hearing on that issue, and the written waiver form provided the court at the time appellant made that oral admission and waiver, fully conformed with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and appellant's admission and waiver were knowing and voluntary.
The record provides a factual basis for the admission and waiver.
Nothing in the record suggests appellant may have been mentally incompetent to make the aforesaid admission and waiver, or to stand trial, and he was at all times represented by competent counsel who protected his rights and interests.
The trial court had discretion to grant or deny probation or extend the term of the probation previously granted, and the denial of probation and extension of the term thereof is authorized by law and was not an abuse of discretion.
Our independent review having revealed no arguable issues that require further briefing, the judgment is affirmed.
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Kline, P.J.
We concur:
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Haerle, J.
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Lambden, J.