Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge, Super. Ct. No. SCE262663
AARON, J.
In 2006, Joseph Fletcher entered a negotiated guilty plea to one count of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)) in superior court case No. SCE262663. The trial court placed Fletcher on formal probation for a term of three years and continued his probation for an earlier drug possession offense in superior court case No. SCE256214.
In 2007, Fletcher admitted that he had violated his probation. The court formally revoked probation and sentenced Fletcher to a prison term of three years. The court also sentenced Fletcher to a consecutive term of eight months (one-third the middle term) for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).
FACTS
Fletcher's conditions of probation included that he obey all laws, report any address changes to the probation officer within 72 hours, report in writing any law enforcement contacts to the probation officer within seven days and refrain from using or possessing any controlled substances without a valid prescription.
On January 4, 2007, law enforcement officers contacted Fletcher because he did not pay for a cab ride. Officers contacted Fletcher on February 17 for possible narcotics activity. On March 13, Fletcher was cited for driving on a suspended license. When officers attempted to contact Fletcher at his reported address on March 19, they learned that he had been kicked out of the residence a week earlier. On March 22 and April 26, Fletcher reported to his probation officer and tested positive for methamphetamine.
On May 1, Fletcher was arrested for violating the conditions of his probation. On May 7, Fletcher admitted that he violated probation by testing positive for methamphetamine. On May 29, the court revoked Fletcher's probation in superior court case Nos. SCE262663 and SCE256214 and sentenced him to a prison term of three years eight months.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel has not referred us to any possible, but not arguable, issues pursuant to Anders v. California (1967) 386 U.S. 738.
We granted Fletcher permission to file a brief on his own behalf. He has responded. Relying on People v. Cotton (1991) 230 Cal.App.3d 1072, Fletcher contends that his prison sentence should be reversed, and the case remanded for a new hearing in which he receives a fair opportunity to demonstrate his eligibility for a drug program. The contention is without merit.
Upon the revocation of a defendant's probation, a trial court is authorized to choose from all available sentencing options, including a state prison sentence. (In re Delong (2001) 93 Cal.App.4th 562, 571.) When a trial court revokes a defendant's probation and implements sentencing, the trial court has the discretion to impose sentencing as it sees fit, to the extent authorized by the Legislature. (People v. Navarro (1972) 7 Cal.3d 248, 258.) The relevant holding of People v. Cotton, supra, 230 Cal.App.3d 1072, to this case is that the court must state its reasons for choosing imprisonment over reinstatement on probation. (Id. at p. 1081.) The court did so here.
Acknowledging that the probation violations were not "that egregious," the court noted that Fletcher's criminal history was egregious. The court stated: "These two offenses represent his fifth and sixth felony convictions. . . . I find that he is no longer a fit or appropriate candidate for reinstatement on probation, that he has demonstrated he is not amen[]able to probation supervision."
It is presumed that the court knows and correctly applies the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The court's comments show that the court understood its discretion to reinstate probation, but concluded that continued probation was not justified in light of Fletcher's criminal history. There is nothing in the court's comments to suggest that it did not understand that it was within the court's discretion to reinstate probation. Further, consideration of a defendant's criminal history, prior performance on probation or parole, and willingness to comply with terms of probation are legitimate criteria in considering whether a defendant should be granted probation. (Cal. Rules of Court, rule 4.414 (b)(1)(2)(4).)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Competent counsel has represented Fletcher on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.