Opinion
E073371
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEXANDER LOPEZ, Defendant and Appellant.
Connie A. Broussard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CJ001463) OPINION APPEAL from the Superior Court of San Bernardino County. David A. Williams, Judge. Affirmed. Connie A. Broussard, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Jose Alexander Lopez appeals from a trial court's finding that he was in violation of his post release community supervision (PRCS). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2017, defendant was convicted of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and was sentenced to two years in prison. He was released on PRCS on July 5, 2018, under specified terms. On July 3, 2019, the San Bernardino County Probation Department filed a petition for revocation of his PRCS, alleging that he violated the terms requiring him to "cooperate and follow all reasonable directives of the Probation Officer," keep the Probation Officer informed of his place of residence, and "submit to continuous electronic monitoring, Global Positioning System, or other device, as directed by [his] Probation Officer." The petition alleged that, on June 6, 2019, defendant reported for check in and said he was residing at a new location. He wanted his GPS off, but was advised that he needed approval from his assigned probation officer. He was directed to report again on June 26, 2019. On June 18, 2019, his probation officer received a notification that defendant had a "Master Tamper" alert. The next day, defendant's GPS began to alert to "low battery alarm," then "critical battery," and then "dead battery." That same day, defendant's girlfriend called his probation officer and reported that defendant left his residence on June 17, 2019, and had not returned. On June 20, 2019, defendant's probation officer called his listed phone number, and defendant's voicemail stated the "caller does not accept calls at this time." The probation officer sent defendant a text message directing him to call or else a bench warrant would be issued. On June 21, 2019, the probation officer received an alert that defendant's GPS was dead and that defendant had cut it off. On June 26, 2019, defendant failed to appear for his scheduled office appointment.
Defendant's supervision history showed that he was given a copy of his PRCS terms, which he stated he understood. His probation officer also directed him several times to keep his GPS unit charged and to not cut it off.
Defendant appeared for a PRCS revocation hearing on July 15, 2019, and requested a jury trial, pursuant to United States v. Haymond (2019) 139 S.Ct. 2369. The court reviewed the case and determined that it did not apply. The court denied the request and set the matter for a further hearing.
The court held a PRCS hearing on August 2, 2019. Defendant appeared and was shackled with a waist chain around his stomach, with both hands cuffed to the waist chain, and his feet chained together. Defense counsel requested that defendant be "completely unshackled" during the hearing. Counsel asked that defendant be able to assist him during the hearing if he had any questions and that defendant be able to write notes. Counsel admitted that the customary practice was not to unshackle defendants in court. The court stated it "[did not] want to deviate from procedure" and denied the request. Upon hearing testimony from defendant's probation officer, the court found that defendant violated his PRCS terms. It mentioned that it considered the violations carelessness on defendant's part, rather than intentional. The court reinstated defendant on PRCS with the additional term that he serve 120 days in county prison.
ANALYSIS
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: (1) whether United States v. Haymond, supra, 139 S.Ct. 2369 grants a person the right to a jury trial at a PRCS revocation hearing; (2) whether defendant was denied his right to counsel when the court denied his request to be unshackled during the PRCS revocation hearing; (3) whether a court is required to find a PRCS violation intentional—specifically, the failure to comply with the GPS monitoring requirement and the failure to meet with a probation officer; if so, was defendant prejudiced when the court found he was just careless; and (4) whether there was sufficient evidence that defendant violated the GPS requirement, absent evidence he removed the GPS monitor or was aware that the battery was running low or dying, and whether this absence of evidence was harmless, given the evidence of his failure to comply with other terms. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.