Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. VA 092667 c/w No. VA 092923, Mark G. Nelson, Judge.
California Appellate Project, Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, J.
On March 13, 2006, Ramiro Jimenez pleaded guilty to two counts of second degree burglary in violation of Penal Code section 459 (counts 1 and 2), one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 3), and one count of being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a) (count 4). Jimenez also admitted that he had served three prior prison terms within the meaning of section 667.5, subdivision (b), and that he committed counts 1 and 2 while released from custody on bail or on his own recognizance within the meaning of section 12022.1.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
On May 18, 2006, the trial court sentenced Jimenez to six years and four months in state prison, calculated as follows: (1) the low term of 16 months in state prison on count 1; (2) the low term of 16 months in state prison on count 2; (3) the low term of 16 months in state prison on count 3; (4) one year in the Los Angeles County jail on count 4; (5) all of those sentences to run concurrently; (6) plus three years in state prison for the three prior prison terms under section 667.5, subdivision (b); and (7) plus an additional two years in state prison pursuant to section 12022.1. The court suspended execution of the sentence and placed Jimenez on five years of formal probation under certain terms and conditions, including that Jimenez “obey all laws and orders of the court.”
On February 20, 2007, the court conducted a probation violation hearing in lieu of proceeding on an open misdemeanor charge, case number 6WW03739. After the parties rested, the court found Jimenez in violation of probation and revoked his probation. The court also dismissed the misdemeanor case.
At the hearing, sheriff’s deputy Paul Shigo testified that on June 20, 2006, he was on patrol with his partner when they saw Jimenez sitting in the front yard of a residence. Jimenez approached them, and Shigo believed, on the basis of his training and experience, that Jimenez displayed various signs of being under the influence of a stimulant. Shigo and his partner investigated further (by, e.g., taking Jimenez’s pulse and testing his eyes’ responsiveness to light), concluded that he was under the influence of a controlled substance, and arrested him for violation of Health and Safety Code section 11550. At the station, Shigo’s partner told Jimenez “that he had the opportunity to provide a urine sample to prove or disprove the presence of a stimulant in his body.” Jimenez provided a urine sample, which tested positive for amphetamine and methamphetamine.
On March 27, 2007, the court imposed the previously suspended sentence of six years and four months in state prison, plus a $200 restitution fine, a $200 probation revocation fee, a $20 court security fee, and a $50 crime laboratory drug analysis fee. The court also clarified that the one-year sentence on count 4 could be served in any penal institution, and the court awarded Jimenez presentence custody credit of 629 days. Jimenez timely filed a notice of appeal.
We appointed counsel to represent Jimenez on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking us independently to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We advised Jimenez that he had 30 days within which he could personally submit any contentions or issues that he wished us to consider. He submitted one and one-half handwritten pages of contentions.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 119, 124.) We have also examined Jimenez’s contentions in light of the record and have concluded that none of them warrants reversal of the judgment in any respect.
Jimenez argues that Shigo admitted on the stand that he did not personally observe “any thing he testified to in court.” That is not correct. On the cited page of the reporter’s transcript, Shigo testified that he did not personally see Jimenez provide the urine sample. Shigo testified that his partner obtained Jimenez’s signature on the consent form and took the urine sample, which was booked under “DR number 406-11143-0494-183.” The parties stipulated that the sample booked under that number tested positive for amphetamine and methamphetamine.
In a similar vein, Jimenez argues that Shigo did not personally observe the collecting of the sample or the signing of the consent form. That is correct, but it is nonetheless true that the record contains substantial evidence that Jimenez provided a urine sample that tested positive for a controlled substance.
Jimenez argues that Shigo was not aware that Jimenez was on parole when he arrested Jimenez on June 20, 2006. The argument appears to be in response to a statement by the court that Shigo had testified that “he was aware of the defendant’s status and the defendant.” The court’s statement is not evidence, however, and regardless of whether it is true, the record contains substantial evidence that Jimenez provided a urine sample that tested positive for a controlled substance.
Jimenez argues that certain parts of Shigo’s testimony are contradictory: The prosecutor asked Shigo, “And did you make contact with the defendant?” He answered “Yes,” and the prosecutor asked, “How was that done?” Shigo answered, “He actually contacted us.” Two pages later in the transcript, the prosecutor asked Shigo where he and his partner were when they investigated their suspicion that Jimenez was under the influence of a controlled substance. Shigo answered, “We were standing in front of the location where we contacted him.” We believe that, read in context, the testimony is not contradictory. In any event, even if we agreed that the testimony was contradictory, we would still conclude that the record contains substantial evidence that Jimenez provided a urine sample that tested positive for a controlled substance. We are bound by the trial court’s assessment of credibility (Estate of Joslyn (1995) 38 Cal.App.4th 1428, 1434), and the trial court found Shigo credible despite the possible contradiction that Jimenez has identified.
Jimenez also argues that Shigo cannot have been telling the truth when he testified that he and his partner, sitting in their patrol car, saw Jimenez sitting in the front yard of the residence, because Shigo’s own testimony confirms that the yard was bordered by a block wall that was at least six feet tall. Again, there may be no contradiction here at all. Perhaps Shigo and his partner saw Jimenez through a gap in the wall where the driveway was located. Or perhaps the layout of the terrain did make it possible to see Jimenez over the wall—Jimenez himself testified that he saw “the top of the cop car” from where he was sitting in the yard. In any event, the only part of Shigo’s testimony that is necessary to support the finding that Jimenez violated the terms of his probation is Shigo’s testimony that his partner collected from Jimenez the urine sample that was booked under “DR number 406-11143-0494-183.” The trial court found at least that portion of Shigo’s testimony credible, and we are bound by that determination.
Finally, Jimenez contends that he does not recall signing a consent form or providing a urine sample. The record contains no evidence to support that contention. Jimenez testified at the hearing, but he said nothing about any such lack of recollection.
For all of these reasons, we conclude that Jimenez has not presented any meritorious arguments for the reversal of the judgment, in whole or in part.
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.