Opinion
A118603
4-29-2008
THE PEOPLE, Plaintiff and Respondent, v. GREGORY ALLEN TAGGART, Defendant and Appellant.
NOT TO BE PUBLISHED
Gregory Allen Taggart appeals from a finding that he violated the terms of his probation and the imposition of a previously suspended state prison sentence. His court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
PROCEEDINGS BELOW
On May 10, 2005, appellant pled guilty to battery with serious injury in violation of Penal Code section 243, subdivision (d). Appellant was sentenced to the three-year midterm with total credits of 144 days. Sentence was suspended and appellant was granted probation on the conditions that he serve six months in county jail, submit to chemical testing for drugs and alcohol, refrain from use of alcohol, and complete a batterers treatment program.
Two separate petitions to revoke appellants probation, filed by the probation department on September 7, 2005 and November 4, 2005, were dismissed without hearings. The department filed a third petition to revoke on July 25, 2006, based on appellants failure to report to his probation officer and to provide a urine sample. After appellant failed to appear at the hearing that had been set, a fourth petition was filed on that ground. A fifth petition to revoke was filed on August 31, 2006, for appellants failure to complete the batterers treatment program. At the time of the September 8, 2006 hearing, the People were unable to "go forward" on the fifth petition, but the court found appellant in violation of probation based on the third and fourth petitions. Appellant was sentenced to 45 days in county jail and ordered to participate in the Jordan Recovery Center for a minimum of 90 days.
A sixth petition to revoke, filed on October 24, 2006, made five separate allegations: that appellant (1) provided a urine sample that tested positive for alcohol; (2) the aforesaid sample was "diluted"; (3) failed to keep an appointment with his probation officer; (4) failed to comply with the United Indian Health Services (UIHS) treatment program, as directed; and (5) failed twice to provide a urine sample as directed by his probation officer.
On April 30, 2007, appellant received an indicated sentence of 180 days in county jail if he admitted the allegations of the sixth petition. After waiving his rights, appellant did so. On May 24, 2007, the probation department filed a lengthy supplemental probation report recommending a state prison sentence on the basis of appellants failure to take advantage of the probation granted two years earlier, his "specious" and "deceptive" excuses for his repeated "willful failure" to comply with conditions of probation earlier imposed, and his arrest for an unspecified offense while on probation. The report concludes as follows: "In order for a defendant to get his life on track, he needs to be motivated. He needs to accept that there is a problem, and that he needs to change. This attitude has not been observed in [appellant]. In fact, [appellant] shows no remorse for his abuse, nor does he express any accountability for his failures to comply. [Appellants] initial offense was a vicious and unprovoked attack on an intimate partner simply because she refused to buy him a beer. Based on [appellants] lack of a criminal history, the plea agreement was endorsed. However, [appellant] has failed to fulfill his end of the bargain. The probation department does not believe [appellant] is a suitable candidate for a continued grant of probation, and respectfully recommends that [his] heretofore suspended sentence be imposed." On June 1, 2007, the probation department filed an amendment to the sixth petition, adding the sixth allegation that appellant refused to participate in the Batterers Prevention Program as ordered, and was terminated from that program.
On June 7, 2007, appellant was allowed by the court to withdraw his April 30, 2007 admission of the allegations of the sixth petition to revoke. On July 19, the court sentenced appellant to state prison for the previously imposed but suspended sentence of three years.
This timely appeal was filed on July 25, 2007. The appeal is authorized by section 1237, subdivision (a).
FACTS
The Original Offense
The underlying offense took place on April 16, 2005. Appellant and a woman named Martha Esmond stopped at a gas station. Ms. Esmond, whom appellant had "dated" in the past, brought a drink to the counter to pay for it and appellant put a can of beer on the counter, which Ms. Esmond refused to pay for. When they returned to Ms. Esmonds truck and she began driving away, appellant began punching her. She stopped the truck and asked him to get out; he did but not before attacking her by slapping her face and punching her in the head, causing her to fall out of the truck onto the ground. At some point, she was able to get back into her truck and return to the gas station, where she reported the offense to a law enforcement officer she had earlier seen there. Ms. Esmond reported that she had lost five percent of her vision in her right eye, and that at the time of the presentence report she was still suffering headaches and remained under the care of a physician.
The Revocation Proceeding
A contested probation revocation hearing was conducted on June 26, 2007. Annie McClennan, appellants substance abuse counselor from UIHS, testified that appellant was terminated from that program for failure to participate. Pasquale Romano, a social worker at the batterers treatment program appellant was directed to attend, testified that he also had been terminated from that program for failure to participate. Appellants probation officer, Michael Levezow, testified that a urine sample he was given by appellant tested positive and the laboratory that did the testing reported that the sample had been improperly diluted. Levezows testimony was corroborated by Wayne Ross, a toxicologist at the laboratory. Linda Sanford, another probation officer, testified that on specified dates appellant failed to report or to provide urine samples, as directed by the probation department.
At the close of the hearing, the court found true all of the allegations of the petition to revoke. On July 19, 2007, the court sentenced appellant to state prison for the previously imposed but suspended sentence of three years with total credits of 331 days.
DISCUSSION
At the time his plea was negotiated and entered in 2005, appellant was represented by able counsel. The court fully informed appellant of the consequences of his plea and the rights he would be giving up by his plea before it was entered, and the record satisfactorily shows appellants plea was fully informed and freely made.
The findings made by the trial court in 2007, that the allegations of the sixth petition for revocation were true, are amply supported by the evidence, as is the revocation of probation.
Appellant was effectively represented by counsel throughout the proceedings, including those conducted after he entered his plea in 2005.
There was no sentencing error.
There are no legal issues that require further briefing.
DISPOSITION
The judgment and sentence imposed are affirmed.
We concur:
Lambden, J.
Richman, J. --------------- Notes: All statutory references are to the Penal Code.