Opinion
A101888.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JOSEPH PIEPER, Defendant and Appellant.
Samuel Joseph Pieper appeals from a judgment of conviction entered upon a plea of guilty to one count of violating Penal Code section 261.5, subdivision (c) (unlawful sexual intercourse with a minor). (All further statutory references are to the Penal Code unless otherwise designated.) Appellants court appointed counsel has briefed no issues and asks us to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Appellant was employed as a counselor at the Redwood Alliance Camp Program in Occidental, and had sexual intercourse with an under-aged female camp resident who had previously suffered sexual abuse at the age of 13.
The information charged appellant with two counts of violation of section261.5, subdivision (c) and one count of misdemeanor violation of section 272 (causing a minor to fail to conform to an order of the juvenile court). Initially, appellant entered a not guilty plea. Appellant later changed his plea, while represented by counsel, as a part of a negotiated disposition of the case. The record reflects that after an express waiver of his rights pertaining to trial, appellant plead guilty to one count of violating section 261.5, subdivision (c). The remaining two counts were dismissed on motion of the prosecutor. The record reflects that appellant changed his plea without any promise made as to the extent of the sentence he would receive.
At sentencing, appellant was placed on three years probation with standard conditions, including 90 days in the county jail and a restitution fine of $400. Imposition of any term of sentence was suspended.
Thereafter a petition to revoke probation was filed, and probation was summarily revoked, after appellant had been twice arrested for driving under the influence. The petition also alleged that appellant had violated section 273a, subdivision (a) because his minor son was riding with him at the time of one of the arrests. Appellant waived formal hearing on the violation and the court found him to have violated the terms and conditions of probation, specifically, the condition that he remain alcohol free. A supplemental sentencing report was prepared and, the trial court ultimately reinstated probation under all of its original terms and conditions, including the order to abstain from the use of alcohol and drugs.
Approximately eight months later, appellant in response to a new petition alleging that he had violated probation by a further arrest for public drunkenness and possession of marijuana. He again waived formal hearing and admitted the violation. This time, appellant was referred for an evaluation report pursuant to section 288.1. The probation department recommended that appellant be sentenced to state prison, because his record demonstrated that he was "not serious about dealing with his alcoholism." The court was apparently unpersuaded by defense counsels arguments that appellant had not been given an opportunity to deal with his alcoholism, and that he should be given another chance on probation. The court agreed with the recommendations of the probation department and rejected any further probation.
Appellant was sentenced to the middle term of two years after the court concluded that the factors in favor of mitigation and aggravation were balanced against one another. The previously imposed restitution fine was ordered, as well as a new $400 parole restitution fine pursuant to section 1202.45. The court ordered 272 days credit for time served.
Our review of the record discloses that appellant was represented by counsel throughout the various proceedings. We discern no sentencing error and find no issues that require further briefing. Accordingly, the judgment is affirmed.
We concur: Kline, P. J. and Haerle, J.