Opinion
D072755
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. MONICA HAYNES, Defendant and Appellant.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD251675) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Monica Haynes appeals from a judgment following her guilty plea to one count of robbery (Pen. Code, § 211). The trial court initially granted Haynes three years' formal probation. When Haynes admitted to violating certain probation conditions, the court imposed (but suspended execution of) a five-year prison term, and reinstated her probation, with the additional condition that Haynes complete a residential treatment program. When Haynes again violated certain terms of her probation (as determined after an evidentiary hearing), the trial court revoked her probation and imposed the suspended five-year prison sentence. Haynes appeals.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Haynes has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Offense
According to the probation department's report, Haynes and her then-19-year-old son entered a convenience store in Chula Vista at around 9:30 p.m. on October 30, 2013. After Haynes purchased candy and the cashier closed the cash register, the son told the cashier to open the register again. When the cashier asked the son if he was kidding, the son pulled out a handgun, pointed it at the cashier, and told him to open the register. Haynes told her son, "Just kill him! Just kill him!" The cashier opened the register and stepped away. Haynes and her son took money from the register and put it in their pockets. The son removed the drawer from the register, and he and Haynes left the store.
Haynes and her son were arrested and charged with one count of robbery arising from this incident.
In the same charging document, the son was also charged with four counts of robbery, eight counts of burglary, and one count of reckless evasion stemming from unrelated incidents. --------
Guilty Plea and Initial Sentence
On August 15, 2014, Haynes pleaded guilty to the robbery count, in exchange for the prosecution expressing no opposition to her serving any sentence in local custody. The court (Hon. Timothy R. Walsh) advised Haynes that she faced a maximum exposure of five years in state prison, a $10,000 fine, and four years on parole. The court warned: "You're going to get probation initially, but if you violate probation, you can get that much time. You understand?" Haynes responded, "Yes, sir."
On September 15, the trial court sentenced Haynes. The probation department's report indicated Haynes had numerous prior theft convictions, a prior two-year prison sentence, and numerous prior probation revocations. On the instant offense, the court granted Haynes three years' formal probation, subject to Haynes serving one year in local custody (which was already satisfied by Haynes's custody credits) and satisfactorily complying with the terms of her probation.
Among other things, Haynes's probation terms prohibited her from using or possessing controlled substances (without a prescription) and alcohol, and required that she advise her probation officer of any address change within 72 hours. Haynes told the court she had gone over her probation terms with her counsel, understood them, and agreed to comply with them.
Noting that defense counsel unsuccessfully sought to eliminate the alcohol-prohibition condition, the court warned Haynes: "[T]hese alcohol conditions . . . might very well be your downfall if it comes to a violation. . . . If you abuse alcohol on probation, you're subject to getting violated, and you'll probably go to prison. You understand?" Haynes responded, "Yes."
Haynes's First Probation Revocation
Sometime before September 19, 2016, Haynes violated the terms of her probation and was remanded into custody. At a September 19 hearing, Haynes requested that the court release her on her own recognizance pending further revocation proceedings. When the court denied the request, Haynes responded, "Bogus."
At a November 30, 2016 probation revocation hearing, Haynes admitted to violating the terms of her probation by (1) hitting her mother with a Gatorade bottle, and (2) "stealing stuff" from a department store. During the domestic violence incident with her mother, Haynes was verbally abusive and "physically combative" with arresting officers. The court (Hon. Michael T. Smyth) formally revoked probation, imposed (but suspended execution of) a five-year prison sentence, and reinstated probation on the same terms and conditions as before, with the additional requirement that Haynes "serve or spend six months in the Kiva Drug and Alcohol Treatment Program for Women and Children [(Kiva)]."
Haynes subsequently obtained permission from the court to attend a residential treatment plan at the San Diego Rescue Mission (Rescue Mission) instead of Kiva.
Current Probation Revocation Proceedings
In April 2017, Haynes's probation was summarily revoked due to her having been discharged from the Rescue Mission. The court set an evidentiary hearing.
The probation department's supplemental report identified five potential bases for revoking Haynes's probation: (1) failing to "enroll in and successfully complete [a] residential treatment program as directed [by] . . . Condition 9(a)"; (2) using or possessing a controlled substance without a valid prescription in violation of Condition 9(c); (3) failing to report to the probation officer as directed by Condition 6(i); (4) failing to report any law enforcement contact to the probation officer within seven days as required by Condition 6(k); and (5) knowingly using or possessing alcohol in violation of Condition 8(b).
Haynes's probation officer, Kelley Breman, testified at the evidentiary hearing. Breman explained she was notified by the Rescue Mission that Haynes left to seek medical treatment for a hip issue, and never returned. The Rescue Mission considered Haynes to be on "leave without permission," and discharged her from the program on April 8, 2017. Breman said Haynes never notified her that she left the program, as required by the probation terms.
Breman also testified that Haynes tested positive for methamphetamine on February 14, and positive for methamphetamine and alcohol on February 23.
Finally, Breman testified that when she was preparing a warrant application based on these probation violations, she learned that Haynes had received a trolley citation and failed to report this law enforcement contact to probation.
Haynes also testified at the hearing. She explained that when she left the Rescue Mission to seek medical treatment for her hip, she learned that her mother, who was caring for Haynes's daughters, had been hospitalized and Haynes would need to pick up and care for her daughters. Haynes said she notified the Rescue Mission about this "family emergency" and was given permission to return to the program after 30 days. In the meantime, Haynes said she had enrolled in an outpatient treatment program, and attended the orientation session and three classes before being arrested for violating probation. Haynes claimed she left a voicemail message with the probation department advising she had left the Rescue Mission. She admitted she only called once, and never heard back from her probation officer.
In rebuttal, Breman testified she was informed by the outpatient program that Haynes had attended an orientation session, but had not attended any classes. Accordingly, the program did not consider her "enrolled."
During closing arguments, Haynes's counsel conceded Haynes had technically violated the probation conditions prohibiting alcohol and drug use, but asked the court to weigh the "equities." Counsel argued Haynes had complied with the notice provisions by leaving a voicemail with the probation department. Finally, counsel argued Haynes had not violated the law-enforcement-contact notification requirement because it was unclear whether the trolley personnel who ticketed Haynes was technically a law enforcement officer (as opposed to a private security guard).
At the conclusion of the hearing, the trial court (Hon. Kenneth K. So) found Haynes violated the terms of her probation, explaining:
"I find that it is a violation, and the following conditions have been violated: Condition 9(a), enroll in and complete a residential treatment program. Residential treatment program was not completed. Condition 9(c), not use or [possess] any controlled substance without a valid prescription. [¶] Condition 6(i), report to probation officer as directed. Condition 6(i), report any change of address to the probation officer within 72 hours. I'm not finding a violation of Condition 6(k) [requiring notification of law enforcement contacts]. I'm finding a violation of Condition 8(c), not knowingly use or possess alcohol. Probation is formally revoked."
Defense counsel confirmed that the parties expected the court to sentence Haynes immediately. The court noted that a five-year prison term had already been imposed, but its execution had been suspended. Defense counsel acknowledged that the court had earlier selected the five-year upper term based on Haynes's "underlying conduct." The court indicated it agreed the upper term was appropriate under the circumstances. The court then imposed Haynes's five-year prison sentence, subject to reduction for Haynes's custody and good-behavior credits. Haynes's counsel never asked the court to grant probation instead.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744):
"A. Whether there is evidence to support revocation of probation. [¶] [Citations.]
"B. Whether the court abused its discretion in failing to reinstate [Haynes] on probation."
After we received counsel's brief, we gave Haynes an opportunity to file a supplemental brief. She has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. Haynes has been adequately represented by counsel on this appeal.
DISPOSITION
Affirmed.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
DATO, J.