Opinion
H036476
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOSEPH MIRONCONK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC931306)
Defendant Patrick Joseph Mironconk appeals from an order revoking and reinstating probation on the original terms and conditions. His sole contention on appeal is that the "no alcohol" probation condition must be either stricken or modified to include a knowledge requirement. As we find that the court did not impose a "no alcohol" probation condition in this matter, we will dismiss the appeal.
BACKGROUND
On the evening of January 8, 2009, Jerry McCuen was at his home in San Jose when defendant, who is his sister's boyfriend, drove up. McCuen heard tires screeching and a horn honking in the neighborhood, so he went outside to see what was going on. Defendant drove up, slammed on his brakes, got out of his car, put his hands up, and said that he was going to beat up McCuen. McCuen's parents had banned defendant from coming to their home, so McCuen repeatedly told defendant to leave. When defendant did not leave, McCuen walked towards him. Defendant started to approach McCuen, but then went back to his car, reached under the seat, and pulled out a hammer. McCuen continued to approach defendant. Defendant held up the hammer and then moved his arm forward as if attempting to hit McCuen with it. McCuen swung a fist at defendant and hit him in the neck, and then McCuen ran down the street. Defendant chased McCuen with the hammer for about 15 feet, then returned to his car and left.
The facts are taken from the preliminary examination.
Defendant was charged by a one-count information filed July 2, 2009, with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The information further alleged that defendant personally used a dangerous and deadly weapon, a claw hammer, in the commission of the offense (§§ 667, 1192.7, 1203, subd. (e)(2).) On November 12, 2009, the court granted the People's motion to amend the information to charge defendant in count one with misdemeanor assault with force likely to cause great bodily injury (§ 245, subd. (a)). Defendant then pleaded no contest to count one on condition that he be placed on informal probation with a stay-away order, completion of an anger management program, and "other conditions of probation that would be appropriate." The court suspended imposition of sentence and placed defendant on informal probation for two years. Conditions of probation were that he was to "obey all laws during that time," "have no contact with the victim," and "enter and complete a 16-week anger management counseling program."
All further statutory references are to the Penal Code.
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On February 26, 2010, defendant provided the court with proof of the completion of his anger management counseling program. However, defendant had two outstanding warrants issued as a result of a failure to appear in a domestic dispute matter. Defendant had proof of having completed a 52-week program ordered in that matter, and the court recalled the warrants and reinstated probation.
On November 22, 2010, defendant appeared before the court on four matters. One of the matters (case No. C1089487) was on for trial that day. After a pause in the proceedings, defendant pleaded guilty to committing misdemeanor vandalism on September 30, 2010, and admitted that he violated probation in three other cases, including the case here, as a result of his new offense. As a result, the prosecutor dismissed two other new charges against defendant. The court suspended imposition of sentence, and continued all four matters to November 24, 2010.
On November 24, 2010, in case No. C1089487, which the court indicated was line 5 on its calendar, the court placed defendant on formal probation for three years with various terms and conditions. One of the conditions of probation was that "[h]e's not to own, use, or possess any alcohol or illegal drugs. He's not to be on the premises of any building or business where alcohol is the primary item of sale, or illegal drugs are known by him to be used or sold."
The court then stated, "With respect to a proof of enrollment date, since Mr. Mironconk is going to be released on one, two, three, four matters today, he is to report to probation no later than next Monday. That is November 29th. He is to attend probation orientation on November 30th at 1:30 in the afternoon. He is to come back to this court to provide proof of enrollment on December 7th. That's at 9:02 in the morning. [¶] With respect to lines 2, 3 and 4, Mr. Mironconk is to have his probation revoked and reinstated with no additional sanction on the original terms and conditions. [¶] The minute order also needs to reflect that with respect to each of the cases, that the court is, for the purposes of future sentencing, considering that this case and the other four cases all have suspended one year county jail sentences. [¶] Mr. Mironconk was advised, at the time that he entered a change of plea earlier in the week, that any additional violation of probation will result in a one-year county jail sentence. [¶] . . . [¶] Lines 2, 3 and 4 will have the same proof of enrollment dates as line 5." (Italics added.)
Defense counsel objected to "the drug and alcohol terms," but the court overruled the objection and stated that, based on "the police report in case CC910396," "[t]hat will be the order of the court."
Defendant filed a notice of appeal in this matter on December 20, 2010.
DISCUSSION
Defendant's sole contention on appeal is that "[w]hen [he] was first placed on probation, the court imposed no conditions concerning alcohol. When probation was reinstated on November 24, 2010, the court ordered that he not 'own, use, or possess any alcohol or illegal drugs,' and that he not 'be on the premises of any building or business where alcohol is the primary item of sale.' " "The alcohol related probation conditions were unlawful in two respects. First, they were improperly imposed because the consumption of alcohol does not involve conduct which is criminal, alcohol is unrelated to . . . any of the crimes with which [he] was charged, and did not serve the rehabilitative purposes of probation. Second, the prohibiting against using alcohol or drugs was constitutionally vague and overbroad because it did not include a knowledge element."
We requested supplemental briefing on the question, "Where in the record on appeal does it indicate that the court ordered 'no alcohol' conditions of probation in the case before this court?" Defendant responded in part: "In discussing the no-alcohol probation condition, the court and the parties discussed all four cases before the court that morning. The court made several orders which applied equally to all four cases. . . . Thus, the record indicates the court's orders equally applied to all cases before it, including the case now on appeal."
The Attorney General responded in part: "The record shows that the case before the Court was line 4 on the trial court calendar," and that, "[w]ith respect to this case, the record shows that the trial court failed to include 'no alcohol terms."
We agree with defendant's assertion that the trial court did not impose any conditions concerning alcohol when it first placed him on probation in this matter on November 12, 2009. However, we disagree with his assertion that the court imposed "no alcohol" conditions when it revoked and reinstated probation on November 24, 2010. Rather, the record on appeal indicates that the court revoked and reinstated probation in this matter at that time with no additional sanction on the original terms and conditions. The court stated: "With respect to lines 2, 3 and 4, Mr. Mironconk is to have his probation revoked and reinstated with no additional sanction on the original terms and conditions." The "no alcohol" conditions imposed on November 24, 2010, were in case No. C1089487, line 5 on the court's calendar, a case which is not before this court in this appeal. As defendant raises no issues properly before this court in this appeal, we will dismiss the appeal.
DISPOSITION
The appeal is dismissed.
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR:
MIHARA, J.
DUFFY, J.