Opinion
A151353
02-28-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID MORRISON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR942659)
Appellant Michael David Morrison appeals from a judgment following a contested probation violation hearing. Appellant's counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellate counsel advised appellant of his right to file a supplementary brief to bring to this court's attention any issue he believes deserves review. (People v. Kelly (2006) 40 Cal.4th 106.) Appellant has filed a supplemental brief. We have reviewed the record and appellant's brief, find no arguable issues, and affirm.
BACKGROUND
In October 2014, in Napa County Superior Court, appellant pled no contest to possessing a concealed dirk or dagger (Pen. Code, § 21310). The court suspended imposition of sentence and placed appellant on three years' probation. Appellant's case was subsequently transferred to Lake County.
All undesignated section references are to the Penal Code.
Appellant appealed from this judgment and this court affirmed. (People v. Morrison (Aug. 6, 2015, A144854) [nonpub. opn.].) We grant appellant's request for judicial notice of the records in this prior appeal.
In April 2016, appellant's probation was summarily revoked following his arrest for public intoxication (§ 647, subd. (f)) and resisting a peace officer (§ 148, subd. (a)). Appellant admitted violating his probation and the court reinstated probation with modifications, including the requirement that he report to probation monthly and serve 120 days in jail.
In June 2016, appellant's probation was again summarily revoked following an incident in which police were dispatched to appellant's home after a report that he had threatened his parents, police observed several signs that appellant was intoxicated, and appellant refused to submit to an alcohol test. Appellant admitted the violation and the trial court reinstated probation, with modifications including the requirements that appellant serve 200 days in jail, participate in counseling as required by probation, and attend twice weekly Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings and submit monthly proof of attendance to probation.
In December 2016, the probation department alleged that appellant violated the following terms of his probation: (1) obey all laws, (2) follow reasonable orders of probation, (3) report to probation monthly, (4) participate in counseling, and (5) participate in AA/NA and provide probation with proof of attendance. The trial court summarily revoked appellant's probation. In January 2017, appellant made two Marsden motions, both of which were granted by the trial court.
People v. Marsden (1970) 2 Cal.3d 118.
A contested probation violation hearing was held in March 2017. Lake County Deputy Probation Officer Luis Loza testified as follows. In May 2016, Loza reviewed appellant's probation conditions with him, including the requirement that appellant report to probation monthly, but appellant did not report to probation from September through November. Appellant also failed to appear at a scheduled probation meeting in August. Appellant failed to provide any proof of attendance at AA/NA classes from September to November. In July, Loza referred appellant to a counseling program, but in December 2016, the counseling program told Loza appellant had not enrolled. On cross-examination, Loza testified that appellant contacted him in September requesting a referral to the counseling program, and Loza sent additional referrals.
Appellant testified that while previously in custody, he had completed eight AA/NA classes. He attempted to sign up for the counseling program on three occasions but they refused to enroll him because he did not have a referral from the court or probation. He testified that he did report to probation on a monthly basis.
The trial court found appellant violated the terms of his probation by failing to obey orders of probation, failing to report on a monthly basis, and failing to attend AA/NA and submit monthly proof. The trial court clarified that it did not find appellant in violation for failing to enroll in the counseling program.
At sentencing, the trial court found appellant presumptively ineligible for probation because he had two prior felony convictions (§ 1203, subd. (e)(4)). The court denied probation because of appellant's criminal record, prior commission of crimes of violence, and poor performance on probation. The court imposed the maximum sentence of three years in county jail, finding multiple factors in aggravation and only one mitigating factor, and found in the interests of justice that a "split" sentence was not appropriate. The court awarded custody credits and imposed a previously suspended probation revocation fine (§ 1202.44). Appellant filed a notice of appeal.
In his notice of appeal, appellant requested a certificate of probable cause, which the trial court denied. No certificate of probable cause is required. (See §§ 1237, 1237.5.)
DISCUSSION
The revocation hearing complied with the due process and procedural requirements enunciated in People v. Vickers (1972) 8 Cal.3d 451. Appellant was adequately represented by counsel and was afforded the opportunity to present evidence and cross-examine the prosecution witness. The court's finding that appellant violated probation is supported by substantial evidence and the decision to revoke probation was not an abuse of discretion. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.) The court considered the relevant factors when imposing the upper term.
We note there may have been an error in the calculation of custody credits. The probation report, in calculating appellant's custody credits, provides appellant was released from custody after being arrested for his second probation violation on June 9, 2016. However, the court's minutes show appellant appeared in custody at hearings related to that violation on June 10, June 14, July 6, and July 12; on July 12, the court remanded appellant to the sheriff's custody to serve the jail term ordered as part of his probation reinstatement. As no objection was raised below, any error cannot be corrected on appeal but, if appellant believes there was error, he can file a motion in the trial court to correct the credits. (§ 1237.1 ["No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court, which may be made informally in writing."]; People v. Fares (1993) 16 Cal.App.4th 954, 958 ["There is no time limitation upon the right to make the motion to correct the sentence."].) --------
In his supplemental brief, appellant states his intent "to introduce . . . new ev[i]dence in this case," describing various facts which he claims led to his "false arrest[]." "[O]ur review on a direct appeal is limited to the appellate record. [Citations.] Because defendant's claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it at this juncture." (People v. Barnett (1998) 17 Cal.4th 1044, 1183.)
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.