Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA088204, Martin Larry Herscovitz, Judge.
Randall H. Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Johnnie Lee Johnson appeals from the judgment entered following a finding that he was in violation of probation. We affirm.
Underlying Offense in Case No. TA088204
In December 2006, appellant was charged by felony complaint with five counts of corporal injury to a child, in violation of Penal Code section 273d, subdivision (a). The complaint further alleged as to counts 2 through 5 that appellant personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1).
In February 2007, appellant accepted an offer to plead no contest to counts 3 and 4 and admit the use of the deadly weapon in exchange for five years of formal probation. The court accepted the no contest pleas and imposed the high term of six years in state prison on count 3, plus one year for the weapon allegation, for a total of seven years. Execution of the sentence was suspended, and appellant was placed on five years of formal probation on the condition that he serve 360 days in county jail. The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 240 days of actual custody and 120 days of good time/work time credit for a total of 360 days. Sentence on count 4 was stayed, and the remaining three counts were dismissed.
Probation Violation
On October 19, 2009, the court held a hearing regarding a possible probation violation in Case No. TA088204 and new charges in Case No. LA062661. The court also held a Marsden hearing to address appellant’s request to relieve his counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The court denied the motion, stating that defense counsel was properly representing him and that any breakdown in the relationship was due to appellant’s personality issue, not from any wrongdoing by his attorney.
Appellant then asked to represent himself on both the probation violation and the new charges for drug possession. The court reviewed the issue with appellant and then granted the request, having found that appellant knowingly and intelligently waived his right to counsel.
Prosecution Evidence
The probation violation hearing was held on November 2, 2009. Los Angeles Police Department Sergeant Russell Graybill testified that around 9:45 p.m. on July 30, 2009, he saw appellant standing on Van Nuys Boulevard near Valerio Street, blocking traffic and yelling. Sergeant Graybill pulled his car up to appellant and got out of his car. Appellant continued yelling and started approaching the sergeant’s car, walking in the middle of the street and obstructing traffic.
Sergeant Graybill told appellant to step onto the sidewalk, but appellant told him that four people walking on Valerio Street had just jumped him. Sergeant Graybill asked for backup units and detained the four people appellant pointed out. Numerous officers responded, but appellant then stated that Sergeant Graybill detained the wrong people; it had only been a verbal dispute, and appellant did not want to speak to the officers. Sergeant Graybill released the four people.
As appellant was walking away, Sergeant Graybill tried to stop him in order to give him a citation for impeding the roadway. Appellant was talking on his cell phone and began cursing at the sergeant, saying that he was talking to his brother. Sergeant Graybill ordered him several times to put his phone away. Appellant walked toward Sergeant Graybill, placed his phone and another object on a planter, bent down, grabbed his phone, and then appeared to lunge toward the sergeant.
Sergeant Graybill yelled at him to stop and drew his baton. Two other officers arrived, and they all ordered appellant to the ground. Appellant complied and was handcuffed. Sergeant Graybill went to the planter where he had seen appellant place an object, and he discovered a white plastic wrapper containing several off-white objects that appeared to be rock cocaine. Appellant was arrested for possession of narcotics.
Defense Evidence
Appellant testified that when Sergeant Graybill first approached him, the sergeant already had his gun drawn and pointed at appellant. When the backup officers arrived, appellant said he would not press charges against the people Sergeant Graybill had stopped because they were not the ones who had assaulted him.
Appellant admitted being on probation, but he explained that he had stepped into the street to avoid the people trying to assault him. Sergeant Graybill asked appellant what he was on probation for, and appellant said it was for whipping his children, not for drugs. Appellant said that he walked away from Sergeant Graybill only after the sergeant said he was free to leave; he denied having cursed at him.
After appellant walked away, Sergeant Graybill drove past him, jumped out of his car, and “came at [him] with his billy club, ” telling appellant to drop his cell phone. Appellant was talking to his brother, so he turned on the speaker on his cell phone. The officers put appellant in the police car and asked where he bought drugs from, but appellant denied having any drugs. Appellant also denied having blocked traffic. He accused Sergeant Graybill of fabricating his testimony and claimed that he did not use cocaine.
Rebuttal Evidence
Los Angeles Police Officer Jonathan Brito testified that when he responded to Sergeant Graybill’s call, he saw appellant on the sidewalk talking to the sergeant. He saw appellant go down on his right side, place something in a planter, get back up, and continue talking to Sergeant Graybill. After Sergeant Graybill pulled out his baton, Officer Brito came up behind appellant, who began to comply with the sergeant’s commands after seeing the other officers. Officer Brito did not see how many objects appellant put in the planter, but he later found a clear plastic bag containing rock cocaine in the planter.
The court gave appellant a two-week continuance in order to bring his brother to testify and to obtain a transcript or CD of the police radio transmissions. The court also granted appellant’s request for an investigator.
Appellant testified at the subsequent hearing and repeated the version of the incident he gave earlier. The court continued the matter in order to listen to the police radio transmissions.
After reviewing the radio transmissions, the court found the evidence sufficient to support the finding that appellant violated his probation by possessing cocaine. The court imposed the previously-suspended sentence of seven years in state prison and gave appellant credit for a total of 458 days. The court dismissed Case No. LA062661 in the interests of justice. Appellant filed a timely notice of appeal.
The court subsequently recalculated appellant’s credits to give him a total of 588 days credit.
After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On March 30, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. No response has been received to date.
“The standard of proof required for revocation of probation is a preponderance of evidence to support the violation. [Citation.] Trial courts are granted great discretion in deciding whether or not to revoke probation. [Citation.] ‘Absent abuse of that discretion, an appellate court will not disturb the trial court’s findings.’ [Citation.]” (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) “‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” [Citation.]’ [Citation.]” (People v. Singleton (2010) 182 Cal.App.4th 1, 18.) The trial court did not abuse its discretion in finding appellant in violation of probation.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J.SUZUKAWA, J.