Opinion
A131334
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. CHARLES GARRETT HARDING, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sonoma County Super. Ct. No. SCR-569720
Defendant Charles Garrett Harding appeals following revocation of probation and imposition of a prison sentence. Defendant's appointed counsel on appeal reviewed the record of this case, did not identify any trial court errors, and asked this court for an independent review of the record to determine if any arguable issues exist for review on appeal. (Anders v. California (1967) 386 U.S. 738, 744; People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende (1979) 25 Cal.3d 436, 441-442.) Defendant was advised that he could file a supplemental brief with this court raising any issues he wished to call to our attention. Defendant has filed a supplemental brief. We have reviewed the record and, finding no errors or arguable issues for review, affirm the judgment.
I. FACTS
Defendant was granted probation pursuant to a negotiated disposition in which defendant entered no contest pleas to two felony offenses: offering a bribe to a police officer in June 2009 and battery with infliction of injury upon a police officer in August 2009. (Pen. Code, §§ 67, 243, subd. (c)(2).) The facts of the underlying crimes and trial court proceedings surrounding entry of the pleas are described in a prior appeal. (People v. Harding (July 29, 2011, A129243) [nonpub. opn.].)
On July 23, 2010, defendant was released from custody on probation. His probation was conditioned on various terms. The terms included submission to warrantless searches and seizures, reporting to his probation officer, not possessing controlled substances without a prescription, being of good conduct, and obeying all laws. Two months after his release, on September 22, 2010, defendant was arrested for possession of controlled substances: marijuana, methadone, and Percocet (a prescription preparation containing oxycodone and acetaminophen).
A petition for revocation of probation was filed alleging violation of probation for failure to obey all laws, possessing controlled substances without a prescription, and failure to report to his probation officer. New criminal charges were also brought for drug possession. A jury trial was convened on the new charges, and the trial judge considered the violation of probation allegation concurrent with the trial. A mistrial was declared on the new charges when the jury failed to reach unanimity. The prosecution dismissed the new charges and proceeded on the probation violation alone. The court found defendant in violation of probation. A prison sentence of four years, eight months was imposed on the original conviction for bribery of a police officer and battery on a police officer. Defendant received 1,080 days credit for time served. Defendant filed a timely notice of appeal.
II. DISCUSSION
We have reviewed the record and considered the arguments defendant raises in his supplemental brief. We find that substantial evidence supports the trial court's finding that defendant violated probation. An express condition of the grant of probation was that defendant not possess controlled substances without a prescription. Defendant was found in possession of three controlled substances: methadone, Percocet (containing oxycodone), and marijuana. The marijuana was in 14 separate containers (mostly bags). The 14 marijuana portions ranged in weight from .7 grams to 32.5 grams. Defendant did not have a prescription for methadone or Percocet. Defendant did have a medical marijuana card but a police officer opined that some of the marijuana was possessed for sale, not personal use, given the way it was packaged. The evidence fully supports the trial court's finding that defendant violated the terms of his probation.
In his handwritten 13-page supplemental brief, defendant claims "multiple violations of constitutional laws, state laws, civil laws, business and professions [laws], [and] anti-trust and trade regulations" perpetrated by "all parties including, but not limited to, Sonoma County courts, California judicial system, first appellate project, [appellate counsel] Matthew Siroka, Sonoma County public defenders office, Sonoma County probation department, Sonoma County district attorney office, Sonoma County judges, Sonoma County sheriffs, and [the] Rohnert Park police department." We have not found support in the record for these claims.
Among defendant's more specific contentions, he maintains that he was denied due process because the trial judge considered the violation of probation allegation concurrent with the trial of new criminal charges, and found a probation violation despite a mistrial of the new charges. There was no denial of due process. A combined hearing considering both new charges and a probation violation is proper. (People v. Santellanes (1989) 216 Cal.App.3d 998, 1003-1005.) Nor was due process denied when the court revoked probation based upon evidence presented at the trial of new charges that ended in a mistrial. "[T]he authorities are unanimous in concluding that the standard of proof used in a criminal trial, namely the 'beyond a reasonable doubt' standard [citation] is inapplicable to the probation revocation hearing. [Citations.] Accordingly, probation may be revoked despite the fact that the evidence of the probationer's guilt may be insufficient to convict him of the new offense." (In re Coughlin (1976) 16 Cal.3d 52, 56.) Even "[r]eversal of a conviction on appeal does not preclude the court from considering the underlying evidence in deciding whether or not to revoke probation." (Id. at p. 57.) The mistrial declared here when the jury failed to reach a verdict did not preclude the trial court from considering the underlying evidence in deciding to revoke defendant's probation. We find no error in the trial court proceedings and no arguable issues for review.
III. DISPOSITION
The judgment is affirmed.
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Sepulveda, J.
We concur:
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Reardon, Acting P.J.
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Rivera, J.