Opinion
D073696
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MORALES, Defendant and Appellant.
Andrea S. Bitar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SPV000171) APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Francisco Morales appeals an order revoking and reinstating his parole following a contested parole revocation hearing. His counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) to determine whether there are any arguable issues for review. We informed Morales of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, Morales was convicted of assault with a deadly weapon and injury to an elder resulting in death or great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 368.) The court sentenced him to two years in state prison and concurrently released him on supervised parole with various special conditions, including that he wear a GPS device and charge it at least twice a day, that he not enter or loiter within 250 feet of the perimeter of a playground or park, and that he attend a substance abuse treatment program. Specifically, parole condition No. 6 states that Morales "shall enroll in and successfully complete a substance abuse treatment program as directed by your parole agent or appropriate parole authority." Parole condition No. 18 provides that Morales "shall not enter or loiter within 250 feet of the perimeter of places where children congregate; e.g., day care centers, schools, parks, playgrounds, video arcades, swimming pools, state fairgrounds, county fairgrounds, etc."
The petition to revoke Morales's parole indicates that on March 27, 2017, Morales was convicted only of assault with a deadly weapon. A criminal history log in the record shows an additional conviction for elder abuse on that date. We obtained and take judicial notice of the abstract of judgment in the underlying criminal matter, which shows Morales was convicted of both offenses on that date and sentenced to two years in state prison on both, with the second two-year sentence on the elder abuse conviction imposed concurrent to the first. His pre-confinement credits (1085) exceeded the time imposed, and Morales was ordered to report to the local parole office. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [reviewing court may take judicial notice of matters not before the trial court].) --------
In February 2018, Morales's parole agent filed a petition to revoke Morales's parole alleging four probation violations, including that Morales (1) failed to enroll and participate in a substance abuse treatment program; (2) disabled his GPS tracking device; (3) failed to participate in anti-narcotics testing; and (4) entered or loitered at or on the perimeter of a park or playground. Following a parole revocation hearing at which the court considered the sworn testimony of Morales's parole agent, the court found Morales committed all four alleged violations. It imposed a sentence of 180 days in custody with 41 days of service credit. The court also modified Morales's parole conditions to add the condition that Morales be placed in a residential drug and alcohol treatment facility.
DISCUSSION
Morales's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, urging no grounds for reversal of the judgment, and asking this court independently to review the record for error. Pursuant to Anders, counsel identifies the following issues to assist the court in its search of the record for error:
(1) Whether the lack of a knowledge requirement in parole condition No. 18 concerning entering or loitering within 250 feet of places where children congregate makes the condition unconstitutionally vague; and
(2) Whether the parole officer unconstitutionally required Morales to attend Alcoholics Anonymous or Narcotics Anonymous in violation of the First Amendment.
We have reviewed the record consistent with the requirements of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738; considered the issues listed by appellate counsel; and found no reasonably arguable grounds to reverse or modify the order. Appointed counsel has represented Morales competently on this appeal.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. IRION, J.