Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-493039
McGuiness, P.J.
Jeffrey Lawrence Smith (appellant) appeals from a judgment entered after he admitted a probation violation, probation was revoked, and he was sentenced to three years in state prison. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.
Factual and Procedural Background
On August 18, 2006, a complaint was filed in Sonoma County Superior Court charging appellant with inflicting unjustifiable physical pain and mental suffering on a child under circumstances likely to produce great bodily harm and death (Pen. Code, § 273a, subd. (a), count 1) and threatening to commit a crime that could result in death and great bodily injury (§ 422, count 2). The complaint was later amended to add a third count for felony vandalism (§ 594, subd. (a), count 3) and reduce count 1 to a misdemeanor (§ 273a, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The complaint was based on an incident that occurred on August 4, 2006. That night, appellant arrived home in an intoxicated state. When his 15-year-old son made a comment about appellant’s intoxication, appellant picked his son up, pinned him in a chair and repeatedly hit him in the stomach and head. His son managed to struggle free but appellant grabbed him by the hair and threw him into an iron stove. Appellant’s mother said she later found “several ‘clumps’ of hair” around the house. Appellant again pinned his son in a chair and hit him in the stomach and head with a closed fist, then threw him on the ground near the front door where they continued to struggle. At that time, appellant’s mother and appellant’s son were able to lock appellant out of the house. They locked themselves into a bathroom and called 911. From outside a window, appellant taunted his son, then punched the window, causing it to shatter. Appellant suffered a large laceration to his arm. When interviewed about the event, appellant admitted he punched the window and recalled being treated for a cut to his arm but said he did not remember anything else because he was “blacked out” from alcohol.
Appellant entered a no contest plea as to counts 1 and 3 as amended in exchange for a promise of probation, and count 2 was dismissed. The court suspended imposition of judgment and placed appellant on supervised probation for four years on various conditions, including serving nine months in county jail, completing parenting classes, counseling and an outpatient program, and not possessing or using alcohol.
On October 2, 2007, probation was summarily revoked after appellant admitted he absconded from probation supervision and failed to complete an outpatient program. On January 9, 2008, the court reinstated him to probation on the original terms and ordered him to serve an additional nine months in county jail. Appellant waived accrued custody credits.
On September 22, 2008, probation was summarily revoked after appellant admitted he failed to report to probation and consumed alcohol. On December 31, 2008, the court revoked probation, sentenced appellant to time served as to count 1 and imposed the upper term sentence of three years as to count 3. The court ordered appellant to pay a $200 restitution fine, a $20 security fee, and a $200 revocation fine that was stayed pending successful completion of parole. It awarded appellant presentence custody credits of 408 days. Appellant filed a timely notice of appeal.
Discussion
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. Appellant admitted he violated his probation by failing to report to probation and consuming alcohol. The trial court therefore did not abuse its discretion In revoking probation and ordering the suspended sentence into effect. The trial court also did not abuse its discretion in imposing the upper term as to count 3. The record supports the court’s statement that appellant’s “prior convictions as an adult are numerous, [he] was on a grant of conditional sentence at the time of the instant offense, [and his] prior performance on grants of formal probation and conditional sentence were unsatisfactory.” Appellant was adequately represented by counsel throughout the proceedings. He has been competently represented by counsel in this appeal.
Disposition
The judgment is affirmed.
We concur: Pollak, J.Siggins, J.