Opinion
E053766 Super.Ct.No. FVA1000509
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. BOBBY STEWART, JR., Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant, Bobby Stewart, pled guilty to a felony count of petty theft with two prior theft-related convictions, and was originally placed on probation. His probation was subsequently revoked for failure to report to the probation officer, and defendant was sentenced to the low term of one year four months in state prison. He appeals from the revocation of probation.
BACKGROUND
On April 23, 2010, defendant was charged by way of information with a single count of petty theft with two prior theft related convictions. (Pen. Code, § 666 [former version, pre-Sept. 9, 2010].) On May 7, 2010, defendant entered into a plea agreement by which he pled guilty to the charge, and admitted the two prior convictions for petty theft. In return for his guilty plea, the People did not oppose a sentence of felony probation for three years, on the condition that he serve 180 days in local custody.
On June 8, 2010, the court suspended imposition of sentence and placed defendant on probation in accordance with the terms of his plea bargain. The probationary conditions included terms requiring defendant report to the probation department upon his release from custody and once every 14 days thereafter, cooperate with the probation officer and follow directions, and to keep the probation officer apprised of his address.
Defendant was assigned to a probation officer working in the mental health unit of the probation department. Despite many attempts to contact defendant by letter and telephone to set up office visits, defendant only showed up for his initial visit in August 2010. At that time he was notified of his next office appointment on October 14, 2010, and informed of the duty to contact the probation officer every 30 days. The probation officer even went to the address provided by defendant to make sure it was valid, only to learn that defendant rarely stayed there.
On October 14, 2010, defendant called and left a voicemail message indicating the need to reschedule the appointment because he had a bad cold. The probation officer attempted to return the call, but the call went straight to voice mail and the voice mailbox was full. Defendant called the probation office on October 18, 2010, stating he wanted to reschedule the appointment. On November 2, 2010, defendant called in to report that he had a new cell phone number.
Because defendant's address was in Pomona, his case was transferred to another probation officer. The first contact this probation officer had with defendant was a telephone call on February 17, 2011, although an appointment letter had been sent to defendant on December 20, 2010, to make initial contact at the Rancho Cucamonga office. Defendant was instructed to appear for an appointment on January 4, 2011, but he failed to show up. Another appointment letter was sent to defendant for a meeting on January 20, 2011. Defendant left a telephone message on January 19, 2011, stating he did not have the money to make it to the meeting. The probation officer attempted to return the call but the number had been disconnected.
The probation officer sent out another letter on February 2, 2011, to set up a meeting for February 8, 2011, but defendant did not show. However, he left a message indicating he was having a hard time and did not want to show up, but he did not leave a number where he could be reached. After some telephone tag in February 2011, the probation officer left a message informing the defendant that if he did not contact her, she would have to seek a warrant. The defendant appeared for an office visit on February 22, 2011. He was told to come back to the office on March 8, 2011, but he did not come in till March 9, 2011.
On March 4, 2011, the probation officer filed a petition for revocation of probation for violating the probation conditions requiring him to report to the probation officer, cooperate with the probation officer and follow directions, and to keep the probation officer informed of his residence. When the defendant came in to the office on March 9, 2011, the probation officer informed defendant that there was a warrant in the system and that he needed to put himself on calendar to take care of it, but he did not.
On April 6, 2011, defendant was arraigned on the violation of probation. A Vickers (ref. People v. Vickers (1972) 8 Cal.3d 451) hearing was conducted on May 27, 2011, resulting in the revocation of defendant's probation. The court declined to reinstate probation, sentencing defendant to the low term of one year four months. The court also imposed the previously stayed probation revocation restitution fine of $200, as well as a restitution fine in the amount of $200 pursuant to Penal Code section 1202.4, subdivision (b). The court also imposed a parole revocation restitution fine in the amount of $200, which was stayed pending completion of parole pursuant to Penal Code section 1202.45.
On May 31, 2011, defendant timely appealed from the revocation of probation. On August 2, 2011, the trial court vacated the sentence imposed on May 27, 2011, in response to a petition for writ of habeas corpus filed by defendant's appellate counsel. Although not included in the record on appeal, the habeas petition appears to have been based on the September 9, 2010, amendment to Penal Code section 666, which now requires three prior convictions to convert a petty theft to a felony. The court granted the petition. The parties stipulated to an order vacating the judgment, and modifying the sentence to reflect a nonprison term of 288 days, and ordered defendant's release. On September 8, 2011, the court again modified the sentence and reduced it to 180 days in jail, with credit for time served, and ordered defendant's release.
The minutes, however, do not reflect that the crime was reduced to a misdemeanor.
DISCUSSION
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, we have determined that defendant's right to due process was not violated. He received notice of the alleged violation of probation, and was represented by counsel at the Vickers hearing, where he was given the opportunity to cross-examine witnesses and testify in his own defense. He received the benefit of the minimum due process requirements. (See People v. Gomez (2010) 181 Cal.App.4th 1028, 1033-1034.)
Second, we conclude that the trial court did not abuse its discretion in revoking probation. Only in an extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443, 445.) The burden of proof used by the trial court in assessing whether there exists a reason to believe the probationer has violated his probation is the preponderance of evidence standard. (Id. at p. 447.) Given defendant's acknowledgment that he did not make monthly in-person reports to his probation officer, this standard was met.
Third, the trial court did not abuse its discretion by not reinstating probation. The decision whether to reinstate or deny probation is discretionary and will not be reversed on appeal absent a showing that the trial court exercised its discretion in an arbitrary and capricious manner. (People v. Jones (1990) 224 Cal.App.3d 1309, 1315, citing People v. Angus (1990) 114 Cal.App.3d 973, 987.) The trial court cited several reasons for its decision, including the defendant's criminal history, and his pattern of noncompliance with court orders.
Fourth, any issue relating to the revocation of probation and imposition of a state prison term is moot. After the notice of appeal was filed, appellate counsel informed the trial court of the statutory amendment to Penal Code section 666, making petty theft a felony only where the defendant has suffered three or more prior theft-related convictions. Because defendant had only two prior convictions for petty theft, the court modified the conviction and sentence after the pronouncement of judgment on the revocation of probation, nunc pro tunc, to reflect a misdemeanor conviction with a six-month maximum term.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
King
J.
Codrington
J.