Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA143029 Sam Ohta, Judge.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, J.
Jose J. Hernandez (Hernandez) appeals the judgment (order revoking probation) entered following a court trial which resulted in his conviction of inflicting injury on the parent of his children (Pen. Code, § 273.5), two counts of battery (§ 242), first degree burglary (§ 459), and two counts of making criminal threats (§ 422). The trial court sentenced Hernandez to a term of four years in state prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcript of the January 27, 1997 preliminary hearing.
In December of 1995, Irma Arroyo (Arroyo) lived in an apartment at 1415 Alvarado Terrace in Los Angeles. She had known Hernandez for approximately three years and was pregnant with his child.
Arroyo later gave birth to twin girls. At the time of the preliminary hearing in this matter, the twins were approximately one year old.
On December 22, 1995, Hernandez went to Arroyo’s apartment. The two began to argue and Hernandez, who was drunk, “pulled” and “pushed” Arroyo, then threatened to kill her. When Hernandez refused to leave the apartment, Arroyo called the police.
On February 10, 1996, Arroyo lived at 821 South Grand View in Los Angeles. Although Arroyo had a restraining order prohibiting Hernandez from approaching Arroyo or her daughters, Hernandez came to Arroyo’s house and entered through the back door. Arroyo told Hernandez to leave and, when he refused to do so, the two argued.
In June of 1996, Arroyo was living at 840 South Hobart in Los Angeles County. On June 13th, Hernandez telephoned Arroyo and stated he wished to see his daughters. When he then came to the house, Arroyo asked Hernandez to leave. As she reached for the telephone to call police, Hernandez grabbed it and “pulled it” out. He then grabbed Arroyo’s hands and, as he held them with one hand, placed his other hand around her throat as if he were going to strangle her.
On July 11, 1996, Hernandez returned to Arroyo’s Hobart apartment. He told Arroyo he wished to see his daughters and that he was going to take them away. When Arroyo asked Hernandez to leave the premises, he hit her with his watch, cutting her on her arm. Hernandez then told Arroyo that if she telephoned the police, he would kill her and the children.
On July 14, 1996, Hernandez again telephoned Arroyo and told her that he was going to come to her house to see the children. When Arroyo would not let Hernandez in through the front door, he climbed up the fire escape and entered the apartment through a bedroom window. Hernandez threatened Arroyo, telling her that if she called the police “something was going to happen and if it wasn’t by him it would be by somebody else.” Hernandez stated he was “going to have someone come and kill [Arroyo].”
On August 8, 1996, Hernandez helped Arroyo move to an apartment at 826 South Parkview. Hernandez told Arroyo that he wished to stay at the house with her and their two daughters. When Arroyo refused, Hernandez hit Arroyo, pulled her hair, scratched her on the arm, then left the apartment. Later that day, Hernandez returned to the apartment and knocked on the front door. Arroyo refused to open the door.
2. Procedural History.
By amended information filed April 22, 1997, Hernandez was charged with stalking (§ 646.9, subd. (a)), burglary (§ 459), two counts of making criminal threats (§ 422), and three counts of willfully inflicting injury on the parent of his children (§ 273.5, subd. (a)). With regard to the allegations Hernandez willfully inflicted injury on the parent of his children, it was further alleged pursuant to former section 273.55 that he had, within the past seven years, been convicted in the Municipal Court of Los Angeles County of willfully inflicting injury on a former spouse, cohabitant or parent of his children.
At proceedings held on April 25, 1997, Hernandez waived his right to a jury trial. The trial court found him guilty of one count of inflicting injury on the parent of his children (§ 273.5), two counts of battery (§ 242), a lesser included offense of inflicting injury on the parent of one’s children, one count of first degree burglary (§ 459), and two counts of making criminal threats (§ 422). The trial court found true the allegations Hernandez had previously been convicted of willfully inflicting injury on a former spouse, cohabitant or parent of his children.
At the same proceedings, the trial court sentenced Hernandez to a total term of four years in state prison, suspended imposition of the sentence and granted Hernandez five years probation. As conditions of probation, Hernandez was to serve the first 365 days in county jail, “not . . . annoy, harass or contact the victim[, Irma Arroyo,] and [his] two children, directly or indirectly,” and “report to [his] probation officer . . . .” The trial court awarded Hernandez presentence custody credit for 238 days actually served and 119 days of good time/work time, for a total of 357 days.
Hernandez timely filed a notice of appeal from the judgment on May 7, 1997. The judgment was affirmed with directions in an unpublished opinion filed in case number B114408 on August 20, 1998.
At a hearing held on March 17, 1999, proceedings at which Hernandez was not present, the trial court revoked Hernandez’s probation. A bench warrant “in the amount of no bail” was issued for Hernandez’s arrest.
Hernandez “was picked up . . . on [the] bench warrant” and appeared at proceedings held on August 15, 2006. The bench warrant was recalled, Hernandez’s probation remained revoked and the trial court ordered a supplemental probation report.
At proceedings held on December 20, 2006, Hernandez waived his right to a hearing and admitted being in violation of his probation. The trial court accepted the admission and found Hernandez in violation of the terms of his probation for “fail[ing] to report.” The trial court recognized that Hernandez had indicated he left California and went to Georgia because his father was ill. Then, addressing the charges of which Hernandez had been convicted, the trial court stated: “If this [had been] a single incident, you know, a single charge, no history, just a single charge, and the judge [had decided] to give the guy a suspended sentence and probation, that might be different to me. . . . But this man, Mr. Hernandez, was convicted of six charges that resulted from five different incidents, and he was given a prison commitment for his conduct. Given a chance on probation, he had the chance to make it good for himself. He did not. And he had to be extradited back to California . . . .” After “analyz[ing] everything,” the trial court determined the sentence “need[ed] to be put in full force and effect.”
The trial court revoked Hernandez’s probation and sentenced him to the middle term of four years in prison for his conviction of first degree burglary, six-month concurrent terms for each of his two convictions of battery, two-year concurrent terms for each of his two convictions of making criminal threats, and a three-year concurrent term for his conviction of willfully inflicting injury on the parent of his children. The trial court awarded Hernandez a total of 477 days of presentence custody credit, consisting of 177 days served in 1996 and 1997, 200 days actually served before his December 20, 2006, sentencing and 100 days of good time/work time. The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a $200 suspended parole revocation restitution fine (§ 1202.45), and a $20 court security fee assessment (§ 1465.8, subd. (a)(1)).
Hernandez filed a timely notice of appeal on December 21, 2006.
This court appointed counsel to represent Hernandez on appeal on March 20, 2007.
CONTENTIONS
After appointed appellate counsel sought and obtained an order from the trial court increasing Hernandez’s total presentence custody credits from 477 to 656 days, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed July 6, 2007, the clerk of this court advised Hernandez to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied that Hernandez’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment (order revoking probation) is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.