Opinion
B301226
07-16-2020
THE PEOPLE, Plaintiff and Respondent, v. HENRY MUNOZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA084559)
THE COURT:
I. INTRODUCTION
After a contested hearing, Henry Munoz (defendant) was found to be in violation of probation. Probation was revoked and a prison sentence imposed. Defendant appealed, and his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In October 2015, defendant was charged with assault with a deadly weapon (Pen. Code § 245, subd. (a)) and criminal threats (§ 422), arising out of a family altercation. On November 6, 2015, defendant pled no contest to one count of assault and was sentenced to five years of formal probation on conditions that included he serve 365 days in county jail; attend at least two Alcoholics Anonymous (AA) meetings per week for the first year of probation; and "obey all laws and orders of the court." The trial court also issued a protective order prohibiting defendant from contacting his parents for five years.
All further statutory references are to the Penal Code unless otherwise stated.
In October 2017, defendant admitted a probation violation. The court reinstated probation on the same terms and conditions with the following modifications: (1) defendant waived his one year of back time; and (2) the court released him to a representative of a sober living facility where he was to complete a six-month residential treatment program. Defendant left the sober living facility after less than one month, which resulted in the court revoking his probation and issuing a warrant for his arrest.
In December 2017, defendant admitted a second probation violation. Once again, the court reinstated probation, and by stipulation extended it to December 19, 2020, with the following modifications: (1) defendant to serve 364 days in county jail; and (2) attend 52 AA meetings.
In May 2018, modifications were made to the protective order and as pertinent here, to defendant's probation, which required him to provide the court with proof that he attended five AA meetings per week, and obtain a referral to attend a treatment and rehabilitation program. Subsequently, defendant presented proof of enrollment in an outpatient program at Twin Town Treatment Center (Twin Town) and on June 26, 2018, the court ordered him to complete that program and to comply with all other probation conditions.
Almost one year later, on June 25, 2019, defendant was found slouched over in a chair in the probation office lobby. He was very dirty, drooling, and unable to speak coherently. Paramedics determined that he was not in need of immediate medical assistance and offered to take defendant to the hospital to be evaluated, but he declined. Defendant was verbally abusive to the probation office staff and the paramedics, and the police were called to escort him out of the building.
On July 31, 2019, the court relieved the public defender's office from representation and granted defendant pro per status. On two prior occasions, defendant's Marsden challenges to the adequacy of the public defender's representation were heard by the trial court and rejected.
People v. Marsden (1970) 2 Cal.3d 118.
On August 14, 2019, the court conducted the probation violation hearing. The People relied on the testimony of (1) defendant's probation officer who provided two letters from the Twin Town facility, one indicating that defendant first enrolled in the program on June 12, 2018, and another indicating he enrolled again on July 11, 2019 (there was no documentation that defendant had completed any program at Twin Town), and AA attendance sheets provided to her by the defendant; and (2) the probation department supervisor who witnessed the June 25, 2019, incident.
Defendant, in pro per, requested a continuance on the basis that he had been denied "the right to have proper counsel present." The court explained defendant's options to him, which were: (1) hire his own attorney; (2) continue to represent himself as he was doing; or (3) utilize the public defender assigned to him who had found a treatment program for defendant before being relieved as counsel. Defendant stated he would "consider the program" and the court recessed until the afternoon.
When the hearing resumed, defendant brought a motion for dismissal which the court denied. Defendant argued that he did not violate his probation because (1) no probation violation occurred on June 25, 2019, because no urinalysis was performed to determine if he was under the influence; (2) he voluntarily entered the program at Twin Town—it was not a term of his probation, and in any event, he is still enrolled in the program and in the process of completing it; and (3) he attended AA meetings on a regular basis as borne out by the attendance sheets signed by the group leaders. The court found defendant in violation of probation based on his failure to complete the five-month Twin Town outpatient program he was ordered to do on June 26, 2018, and his "failure to obey all laws and the probation department's conditions on the use of drugs or alcohol" based on the June 25, 2019, incident in the probation office lobby. The court gave defendant the option of being sentenced to state prison for two years or completing the four-month residential treatment program the public defender had arranged for him. Defendant chose the two-year state prison sentence and the court sentenced him accordingly.
Section 647, subdivision (f) penalizes the act of being in a public place while under the influence of intoxicating liquor or any drug (§ 647, subd. (f)), and being under the influence of a controlled substance is a violation of Health and Safety Code section 11550. --------
Defendant filed a timely notice of appeal.
III. DISCUSSION
As stated above, defendant's appointed counsel filed a Wende brief, raising no issues. We notified defendant of his counsel's brief and gave him leave to file his own brief or letter stating any grounds or argument he might wish to have considered. No supplemental brief was filed.
Proof of a probation violation by a preponderance of the evidence is sufficient to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 446.)
The trial court found that defendant violated the terms and conditions of his probation in two ways. First, he specifically violated the requirement that he "obey all laws" because he was intoxicated or under the influence of drugs on June 25, 2019, when he was found in the lobby of the probation office. The probation office supervisor testified to this incident and the trial court found her testimony to be credible, as opposed to defendant's protestations. The testimony of a single witness is sufficient to support a conviction, or in this case, a finding that probation was violated. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Second, defendant failed to complete the drug treatment program he was ordered to do on June 26, 2018. The evidence which was undisputed by defendant showed that he enrolled but dropped out, and then enrolled again just one month before the probation violation hearing.
Further, we have examined the entire record and are satisfied that defendant's attorney has fully complied with his responsibilities and that no other arguable issues exist. We conclude that defendant 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, 123-124.)
DISPOSITION
The probation violation finding is sustained and the judgment re-imposing a prison sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. /s/_________
LUI , P.J., /s/_________
ASHMANN-GERST, J., /s/_________
HOFFSTADT, J.