Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 2125418
Haerle, J.
I. INTRODUCTION
In February 2004, appellant changed his initial plea of not guilty to a September 2003 complaint charging one count of obstructing and resisting an officer in violation of Penal Code section 69 to a plea of guilty. As a result, on April 4, 2004, appellant’s sentence was suspended and he was placed on felony probation for a period of three years. In the ensuing two years, five separate and distinct motions to revoke appellant’s probation were made and, in each instance, found valid, although in each instance probation was reinstated on condition that appellant serve time in the county jail. Finally, in January 2007, a sixth motion to revoke probation was granted and appellant was sentenced to an aggravated term of three years in state prison for the September 2003 offense.
All further statutory references are to the Penal Code.
Appellant appeals from that order and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requests that we examine the record and determine if it reveals any issues deserving of further briefing. We have done so, find none, and hence affirm the order revoking probation.
II. FACTUAL AND PROCEDURAL BACKGROUND
Inasmuch as appellant pled guilty to the initial (i.e., 2003) offense, our description of it is derived from the probation report.
In the evening of September 4, 2003, a San Francisco Police Department robbery abatement operation was using a “decoy officer” at the corner of Turk and Taylor Streets in San Francisco. Appellant, being an habitué of that area, apparently “spotted” the decoy officer, came up to him, accused him of being “a motherfucking cop, and told him to “leave the corner.” In so doing, appellant put a finger in the officer’s face and told him that he, appellant, was a “copkilling convict and I’ll fuck you up, cop.” Fearing for his safety at this point, the officer gave the arrest signal. As the arrest team moved in, defendant took a “boxing stance, clinched [sic] his fists,’ and said to the officer: “You going down now, 5-0.” Appellant was promptly arrested.
Four days later, a complaint was filed in San Francisco Superior Court charging appellant with one count of a violation of section 69 (obstructing and resisting and obstructing a police officer). By way of enhancements, the complaint alleged that appellant had suffered a prior conviction in 1992 for second degree robbery (§§ 667, subds. (d) & (e), and 1170.12, subd. (b) & (c).) It was also alleged that this 1992 conviction was a prison prior within the meaning of section 667.5, subdivision (b).
Appellant was arraigned the same day, September 8, 2003, a public defender was appointed to represent him, and he then pled not guilty to the charge and the charged enhancements.
On February 3, 2004, pursuant to a negotiated agreement, appellant withdrew that plea and pled guilty to the section 69 charge; the several charged enhancements were dismissed. Appellant was represented by a Deputy Public Defender at this hearing.
On April 4, 2004, pursuant to the negotiated agreement, the court suspended imposition of a sentence on appellant and, instead, placed appellant on three years felony probation, with one of the conditions of probation being that he stay away from Jones and Taylor Streets in San Francisco. A $200 restitution fine was also imposed.
Starting in August 2004 and concluding in July 2006, no fewer than five separate motions to revoke probation were filed. During the course of each, appellant was represented by a Deputy Public Defender. As to each, appellant either admitted the violations or they were found to be true. Each violation involved such things as altercations on the San Francisco streets, being at the corner of Jones and Taylor Streets, failure to report when released from jail custody, etc. All were either admitted by appellant or found to be true by the court or, of course, both. As a consequence of four of the five violations, appellant was ordered to serve additional time in the county jail.
On the evening of January 21, 2007, one James Cleveland, Jr., was standing in front of a bar at––surprise, surprise––Ellis and Jones Streets when he saw appellant step forward and hit a man (later identified as one James Banks) in the jaw across the street. The blow caused the man who was hit to fall and hit the back of his head on the ground. Cleveland then heard appellant say that the man on the ground had “sucker-punched him or did something to him and he finally got a chance to retaliate.”
All further dates noted are in 2007.
Cleveland and another man went over to see if the victim of appellant’s blow was all right, but found him to be unconscious. Then appellant came over to the victim and urinated on his crotch. Cleveland tried once to get an hotel clerk to call 911; after that effort, he saw appellant pick the victim up and slam him, face down, on the sidewalk, which caused the victim to bleed even more. Cleveland then arranged for a second 911 call.
Appellant, testified at the probation revocation hearing that, in 2003 in the Tenderloin, Banks had asked him for a dollar and then swung at him and hit him in the jaw. He stated that he would regularly see Banks in the Tenderloin, and Banks would regularly ask him for money or a cigarette; appellant testified that he felt “intimidated” by Banks because of what had happened before and because Banks “came across in an aggressive-type way.”
Appellant admitted that, on January 21, he had had a “couple of beers” and “had smoked some crack.” Then he saw Banks on the corner of Ellis and Jones Streets, looking at him and muttering. Banks walked up to appellant and asked him for a cigarette and then swung at him with a bottle of vodka, but appellant avoided that and then punched Banks in the mouth, causing him to fall. He admitted that he yelled at Banks as the latter was lying on the ground, saying that Banks had attacked him before and was “not going to do that again.” He then urinated on Banks, but claimed that his subsequent drop of Banks’ body onto the sidewalk was the result of an effort to “help him out” and that, because appellant had been drinking “he slipped out of my hands.”
On January 24, a motion to revoke appellant’s probation was filed based on the police report of this incident. A hearing on that motion was held on March 9 where, as just noted, both Cleveland and appellant testified. The court found appellant to be in violation of his probation at the conclusion of that hearing and, on March 16, ordered appellant’s probation to be revoked; it sentenced him to the aggravated term of three (3) years for the section 69 offense in 2003. The restitution fine of $200 was also reimposed.
On March 22, appellant filed a timely notice of appeal from, and only from, the order finding a violation of probation.
III. DISCUSSION
At the March 2007 hearing at which appellant was found to have willfully violated his probation, he was represented by an able Deputy Public Defender, who not only cross-examined the district attorney’s two witnesses (Cleveland and a deputy probation officer) but also called appellant to the stand to testify himself. Under oath, appellant admitted striking Banks on January 21, 2007, and then urinating on him as he lay on the sidewalk. He testified that, despite warning by others to leave the scene, he did not do so because “I felt I didn’t do anything wrong.”
In light of the testimony of both Cleveland and appellant regarding the events of January 21, 2007, plus appellant’s multiple prior admissions of previous violations of probation, we find no error in the court’s order revoking probation. Nor does our examination of the record reveal any other issues meriting further briefing.
IV. DISPOSITION
The order revoking appellant’s probation is affirmed.
We concur: Kline, P.J. Richman, J.