Opinion
A148031
01-19-2017
THE PEOPLE, Plaintiff and Respondent, v. DERICK ROBINSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR307061)
Following defendant's admission of a third probation violation, the trial court sentenced him to state prison. We affirm the judgment.
We begin by summarizing the factual and procedural history leading up to the filing of the third petition to revoke probation.
On April 23, 2014, defendant approached four minors, brandished a replica gun, and threatened to kill them.
Less than two weeks later, an information was filed charging defendant with two felony counts of making criminal threats (Pen. Code, § 422) and two misdemeanor counts of brandishing a replica firearm (§ 417.4). As to the felony charges, the information alleged defendant had suffered a prior prison term under section 667.5, subdivision (b).
All statutory references are to the Penal Code.
The information was subsequently amended to add a felony violation of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).) Immediately following the amendment of the information, pursuant to a negotiated disposition, defendant pled no contest to the assault charge and admitted the prison prior. Because of unusual circumstances surrounding defendant's commission of the assault, the judge indicated defendant would be eligible for probation. The other felony and misdemeanor counts were dismissed with a Harvey waiver under which any dismissed charges could be considered during sentencing. At the sentencing hearing, defendant was placed on three years of formal probation with various conditions, including that he submit to drug testing and obey all laws and all orders of the court.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey). --------
The district attorney filed a request to revoke defendant's probation in December 2014, following his arrest for misdemeanor theft and trespass. Defendant admitted he violated his probation by failing to obey all laws, and in exchange for his admission, an open misdemeanor case was dismissed. The court subsequently reinstated defendant's probation on March 11, 2015, ordered him to report to the probation department and contact the Solano County behavioral assessment team within 48 hours.
After defendant failed to contact his probation officer, on April 28, 2015, a bench warrant was issued for his arrest for violating his probation. A probation revocation hearing was held, and the court found defendant violated the terms and conditions of his probation. During a later sentencing hearing, probation was reinstated with modifications, including that defendant comply with mental health treatment as directed by his probation officer, complete a substance abuse program, and report to his probation officer within 48 hours of his release.
Though defendant was ordered by the court on July 1, 2015, to keep his appointment with his probation officer or he would be remanded, he evidently failed to report because probation was revoked in September and an arrest warrant was issued in early October. Defendant admitted he violated probation because he failed to report to his probation officer, comply with testing, and attend mental health counseling. In March 2016, the court sentenced defendant to the middle term of three years in state prison with credit for time served of 620 days for the underlying felony assault and struck the prior prison term enhancement for sentencing purposes.
Defendant filed a timely notice of appeal. Counsel was appointed to represent him. Counsel has filed a brief setting forth the facts of the case, but advising the court under the authority of People v. Wende (1979) 25 Cal.3d 436, no issues were found to argue on defendant's behalf. Defendant was notified by his counsel he had 30 days to file a supplement brief with the court. No supplemental brief has been received.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have examined the entire record ourselves to see if any arguable issues are present. We find no meritorious issues requiring reversal of the judgment. The record does not indicate any deficiency in defendant's representation by counsel. We therefore agree with defendant's counsel that no issues are present that could undermine defendant's admission of a probation violation or state prison sentence.
Accordingly, the judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.