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People v. Rocha

California Court of Appeals, Second District, Seventh Division
Jul 14, 2008
No. B203157 (Cal. Ct. App. Jul. 14, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment and order of the Superior Court of Los Angeles County No. TA082831, Arthur M. Lew and Kelvin D. Filer, Judges.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


WOODS, Acting P.J.

Christopher Rocha appeals from the postjudgment order revoking probation and the judgment executing a previously stayed three-year state prison sentence.

On the evening of January 5, 2006, Rocha and codefendant Darrell Walker approached Kenneth Long and threatened to shoot him. A fight ensued; and all three men ended up on the ground. As Rocha and Walker continued to punch and to kick Long, one of them also attempted to retrieve Long’s wallet from his pocket.

Rocha and Walker were charged by information on February 21, 2006, with attempted robbery (Pen. Code, §§ 211, 664) (count 1) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 2). Both entered not guilty pleas to the charges.

On April 27, 2006, Rocha agreed to enter a negotiated plea of guilty to committing attempted robbery (count 1), to waive any accumulated presentence credit, and to admit he violated Proposition 36 probation conditions in two prior cases (Los Angeles Superior Court case Nos. TA076482, TA079426). In exchange, the court would impose and stay execution of a three-year state prison sentence and place Rocha on three years probation.

Walker, who agreed to accept a similar negotiated plea, is not a party to this appeal.

Assisted by defense counsel, Rocha waived his constitutional rights to trial and pleaded guilty to count 1. The trial court found the plea had been freely and voluntarily entered, and there was a factual basis for the plea. Defense counsel joined in the plea and waiver. Pursuant to the plea agreement, the court sentenced Rocha to the upper term of three years in state prison on count 1, stayed execution of sentence and placed him on three years probation. Count 2 was dismissed. Rocha’s Proposition 36 probation was revoked and terminated in LASC case Nos. TA076482 and TA079426.

On October 4, 2007, the trial court granted the People’s motion to dismiss LASC case No. TA091528, which was set for jury trial. The People chose to proceed instead with a revocation hearing on the contested probation violation. According to the evidence at the revocation hearing, Los Angeles County Sheriff’s Detective Noe Garcia responded to a report of domestic violence on July 6, 2007, and came upon an SUV and a fire truck in the street. The hood of the SUV was dented and covered with footprints. The dashboard was ripped open; and one of the side view mirrors was broken.

Garcia testified he interviewed Sheria Cunningham, who said she had been driving Rocha in her SUV when he began drinking from a beer bottle. When Cunningham objected, Rocha slapped and punched her, causing her face to become swollen and inflamed. Cunningham fought back, and the SUV came to a stop. Some passing firefighters stopped to assist Cunningham, which induced Rocha to leave the SUV, jump on the hood, rip open the dashboard, and smash a side view mirror. Garcia produced photographs of the damages to the SUV and the injuries to Cunningham’s face (People's Exhibits 1-8). Garcia determined the SUV was registered to Cunningham.

The defense objected to this testimony as impermissible hearsay, arguing the statements Cunningham purportedly made to Garcia were inherently untrustworthy in light of her subsequent letter to the prosecutor and the defense (Exhibit A), urging that criminal charges against Rocha be dropped. Both sides had attempted and failed to secure the presence of Cunningham at the probation revocation hearing. The court ruled Garcia’s testimony was admissible, subject to its reliability being established by other hearing evidence.

Over defense counsel’s hearsay objection, Garcia testified he also spoke with one of the firefighters, who corroborated what he had been told by Cunningham.

Sheriff’s Deputy Victor Veylupek testified he happened to come upon some fire trucks and pulled to the side of the road to investigate. He saw Rocha jumping on the hood of an SUV, which was parked near a fire truck. Veylupek saw the hood and other parts of the SUV had been damaged. Veylupek identified the SUV in one of the photographs (Exhibit 1) as the SUV he had seen.

Rocha testified in his defense Cunningham was the aggressor. The two of them began to argue while Cunningham was driving and she stopped the SUV. Rocha attempted to get out of the SUV and Cunningham grabbed him, and then scratched his face and pulled his hair. Rocha raised his hands to fend off her attack. Cunningham ripped a chain from Rocha’s neck, which he reached down to retrieve from the SUV floor. When he looked up, the SUV was “surrounded” by firefighters. Rocha denied punching Cunningham or causing her any injuries. He further denied getting out of the SUV, pulling open the dashboard, and jumping on the hood of the SUV. Rocha claimed the dashboard had been previously damaged during a police search, and the SUV hood had been dented earlier.

The court read and considered defense Exhibit A, a letter from Cunningham, and Exhibit B, the statement of a defense investigator who had interviewed Cunningham.

Defense Exhibits A and B, and People’s Exhibits 1 through 8 were admitted into evidence, but they are not part of the record on appeal.

After considering the evidence and arguments of counsel, the trial court found Rocha in violation of probation. The court concluded the People’s witnesses were not impeached to the point of lacking credibility. The photographs of Cunningham were unclear, particularly because the court was unaware of how she appeared before the incident. However, the photographs of Rocha’s purported damage to the SUV hood were corroborated by the testimony of Detective Garcia and Deputy Veylupek. The court expressly found Rocha’s testimony was not credible and Cunningham’s version of events as recounted in her letter and interview statements was “totally unreliable.”

The court declined to reinstate probation, and executed the previously imposed and stayed three-year state prison sentence. Rocha received presentence custody credit of 136 days (91 actual days and 45 days of conduct credit). The court ordered Rocha to pay a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45. Rocha was ordered to pay restitution to Cunningham as determined by the Department of Corrections. The court dismissed two pending misdemeanor cases (Nos. 7CP03280 and 7CP05012) in furtherance of justice (Pen. Code, § 1385).

We appointed counsel to represent Rocha on appeal. After examination of the record counsel filed an “Opening Brief” in which no issues were raised. On March 13, 2008, we advised Rocha he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.

We have examined the entire record and are satisfied Rocha’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment and order are affirmed.

We concur: ZELON, J., JACKSON, J.


Summaries of

People v. Rocha

California Court of Appeals, Second District, Seventh Division
Jul 14, 2008
No. B203157 (Cal. Ct. App. Jul. 14, 2008)
Case details for

People v. Rocha

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ROCHA, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 14, 2008

Citations

No. B203157 (Cal. Ct. App. Jul. 14, 2008)