Opinion
F074723
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES MATTHEW O'NEAL, Defendant and Appellant.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F14902635 & F16903582)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson and James A. Kelley, Judges. Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Smith, J.
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INTRODUCTION
Pursuant to a negotiated plea in case No. F14902635, appellant James Matthew O'Neal pled no contest to one count of first degree burglary and was placed on three years' formal probation. In case No. F16903582, pursuant to a negotiated plea, O'Neal pled no contest to one count of receiving a stolen motor vehicle and one count of operating a "chop shop." O'Neal was again placed on formal probation. On November 7, 2016, at a probation violation hearing, it was determined O'Neal violated probation, probation was revoked, and a term of imprisonment imposed.
O'Neal filed a timely notice of appeal on November 23, 2016. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In case No. F14902635 (case 2635), O'Neal was charged with one count of first degree burglary, one count of second degree burglary, and one count of vehicle theft.
On March 28, 2014, pursuant to a negotiated plea agreement, O'Neal pled no contest to one count of first degree burglary in violation of Penal Code sections 459 and 460, subdivision (a), in exchange for dismissal of all other charges. The plea agreement provided that O'Neal could face up to six years in prison and informed him the conviction would constitute a strike offense.
References to code sections are to the Penal Code unless otherwise specified. --------
On April 29, 2014, the trial court suspended imposition of judgment and placed O'Neal on three years' formal probation. Among the terms of probation was a condition that O'Neal serve 365 days in local custody. Various fines and fees were imposed.
In case No. F16903582 (case 3582), O'Neal was charged with one count of receiving a stolen motor vehicle and one count of owning or operating a motor vehicle chop shop. It also was alleged O'Neal had a prior strike conviction. Pursuant to a negotiated plea in this case, O'Neal pled no contest to receiving a stolen motor vehicle, a violation of section 496d, subdivision (a), and operating a chop shop in violation of Vehicle Code section 10801. He also admitted the strike prior. In exchange for his plea, the People agreed to a four-year sentencing lid and that O'Neal be granted sentencing relief on the strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On July 25, 2016, the trial court struck O'Neal's prior conviction pursuant to Romero, suspended imposition of judgment, and placed O'Neal on three years' formal probation. Terms and conditions of probation included that O'Neal spend 365 days in local custody, which was suspended. O'Neal "was ordered released to the first available bed space at the Salvation Army to complete the six-month inpatient treatment program." O'Neal was ordered to "follow all rules of the program."
When case 3582 was filed, a notice of probation violation was filed in case 2635. Probation was reinstated in case 2635 at the conclusion of the sentencing in case 3582.
On September 15, 2016, another notice of probation violation was filed. The matter was set for a contested hearing. The contested hearing was held on November 7, 2016.
Testimony at the contested hearing established O'Neal was admitted to the Salvation Army program. The resident manager testified fraternization was not allowed in the program. Fraternization consisted of speaking with any member of the opposite sex; residents "cannot even open the door" for a member of the opposite sex. O'Neal was accused of fraternization with a female resident. Initially, he denied the conduct, but then admitted to it. The resident manager informed the director and was instructed to terminate O'Neal from the program. O'Neal engaged in fraternization when the residents of the program were on a trip to Magic Mountain, but also engaged in fraternization at least one other time while in the program.
The probation officer testified that completion of the Salvation Army program and compliance with the rules of the program were conditions of probation for O'Neal. O'Neal's termination from the program constituted a violation of the terms of probation.
The woman with whom O'Neal was accused of fraternizing was called by the defense and testified O'Neal did not engage in any conduct constituting fraternization with her.
At the conclusion of the evidentiary hearing, the trial court opined that the Salvation Army created a situation that "almost seems like a recipe for fraternization by sending two groups of people from a residential treatment program on a trip to an amusement park." The trial court noted the fraternization occurred when O'Neal and others were standing in line waiting for a ride and O'Neal spoke with a female resident. The trial court also noted, however, this was "a violation of the policies of the Salvation Army and they are well within their rights in terminating him."
The trial court noted the current probation violation was O'Neal's fourth violation of probation on the burglary charge and "it's a body of work." The trial court opined O'Neal has earned "his having his probation being revoked."
In case 2635, the trial court revoked probation, imposed the midterm of four years in state prison, and awarded total credits of 755 days. Probation was revoked in case 3582, the mitigated term was imposed to run concurrently with the term in case 2635, and a total of 275 days credit was awarded in this case. The abstract of judgment was filed on November 10, 2016, but contained clerical errors.
O'Neal filed a notice of appeal on November 23, 2016. Appellate counsel was appointed on December 27, 2016. Appellate counsel filed an amended notice of appeal on January 9, 2017.
On January 23, 2017, appellate counsel submitted a letter to the superior court, pursuant to People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel (2002) 103 Cal.App.4th 516, requesting the abstract of judgment be corrected. A corrected abstract of judgment was filed in the superior court on January 26, 2017.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on June 13, 2017. That same day, this court issued its letter to O'Neal inviting him to submit a supplemental brief. No supplemental brief was filed.
O'Neal entered into plea agreements in cases 3582 and 2635. By entering a plea of no contest, O'Neal admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to a review of any issue going to the question of guilt of the underlying offenses. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In order to challenge his plea and his convictions, O'Neal was required to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) No certificate of probable cause was issued by the superior court in conjunction with this appeal.
We review a trial court's findings regarding a defendant's probation violation under the substantial evidence standard of review. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) Great deference is accorded the trial court's decision, as probation is not a matter of right, but an act of clemency. (Ibid.) The burden of demonstrating an abuse of the trial court's discretion in revoking probation is on the defendant. (Ibid.) Here, O'Neal admitted engaging in fraternization in violation of the Salvation Army program rules; it was his fourth violation of probation. O'Neal has failed to demonstrate the trial court abused its discretion in revoking probation.
The clerical errors in the abstract of judgment having been corrected, after an independent review of the record, we find no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.