Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Los Angeles County Super. Ct. No. PA052097
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Alvaro Gutierrez appeals from an order revoking probation. His appointed counsel on appeal has filed a brief in which he finds no arguable issue to raise on appeal and asks that we undertake a review of the entire record for any such issue. He informed appellant of his action. The court also informed appellant of his right to submit a brief or letter raising any ground of appellate contention. We have received no response from appellant.
The brief by appellant’s appointed counsel, and our duty to independently review the record, arise from People v. Wende (1979) 25 Cal.3d 436, 442. We have undertaken the review, as required by Wende, and further discussed in People v. Kelly (2007) 40 Cal.4th 106.
Appellant was originally charged in five counts: two for shooting from a motor vehicle in violation of Penal Code section 12034, subdivision (c) (all further statutory citations are to that code), and two for assault with a firearm (§ 245, subd. (a)(2)). Of these four counts, two were for crimes against one victim and two for crimes against another. A fifth count charged appellant with felony assault and battery, under section 242. In a negotiated disposition, appellant entered a plea of no contest to count three, one of the section 245 charges, and the other counts were dismissed. He was sentenced to the mid-term of three years in state prison, execution of which was suspended during appellant’s period of probation. The terms of probation included 180 days in county jail (less service and conduct credits) and various other conditions, including requirements that he pay restitution fines, cooperate with the probation officer in a plan for appropriate counseling, and obey all rules and regulations of the probation department.
Based on a report from the probation department, appellant was ordered to appear for a probation revocation hearing. Upon his failure to do so, probation was revoked and a bench warrant issued for his arrest. He eventually appeared, and a formal hearing was held at which the court heard testimony from the probation department and from appellant.
The deputy in charge of appellant’s case, Talibah Coffe, testified to the facts supporting revocation. She testified that appellant had a problem with the requirement that he report to her once a month. She gave him several opportunities to reschedule appointments; sometimes he did, and sometimes he did not. On three separate occasions she asked him to bring proof of enrolling in counseling; he never did so. When appellant did appear, Ms. Coffe spoke to him about counseling. With respect to his financial obligations, he stopped making payments after the first payment.
Ms. Coffe recounted the specific dates on which appellant failed to show up for an appointment. She also reported that her records showed that he was arrested during probation for petty theft, in violation of section 484, subdivision (a), and, for that incident, received a 12-month term of summary probation for trespass, a violation of section 602.
In his testimony, appellant admitted missing appointments with the probation officer. He explained that most of the time he was taking the bus, and sometimes he did not make the appointment because his mother took the bus and was on dialysis. He said he was looking for a job but had difficulty finding employment because of his felony conviction, and that when he was employed he was paid “under the table.” When he missed an appointment with the probation officer, “like on the wrong date or late” he would call, and sometimes the officer would call him. He said he was attempting to comply with the conditions of probation, “but I had too [many] things going on.”
The trial court heard argument from counsel on each side, then pronounced its judgment. It noted that appellant had been on probation at the time of the original sentence, and that in the present case he received a suspended sentence to state prison, and knew the seriousness of probation. Nevertheless, he apparently made no effort to call the probation officer and reschedule appointments, and came in only when the probation officer called. He also made no effort to pay the fines or seek a waiver or financial evaluator conference. The court concluded that defendant was not suitable for reinstitution of probation.
The court ordered that the suspended sentence be executed and that defendant be committed to state prison for the three-year term, less appropriate credits.
We find no arguable basis to modify or overturn this judgment.
DISPOSITION
The orders revoking probation and executing the previously suspended sentence are affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.