Opinion
B200021
5-15-2008
THE PEOPLE, Plaintiff and Respondent, v. FABIO A. TORRES, Defendant and Appellant.
NOT TO BE PUBLISHED
THE COURT:
Fabio Torres (appellant) appeals from the trial courts judgment following a hearing in which appellant was found to be in violation of probation. The trial court sentenced appellant to the midterm of two years for appellants August 5, 2004 conviction for possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a).
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an "opening brief" containing an acknowledgment that she had been unable to find any arguable issues. On January 18, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. No response has been received to date.
The record shows that on August 5, 2004, appellant pleaded no contest to possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). In a previous unpublished opinion, this court affirmed the denial of appellants motion to suppress evidence in connection with that case (No. B184338, filed May 11, 2006). In a subsequent unpublished opinion (No. B191922, filed May 23, 2007), this court affirmed the trial courts May 18, 2006 termination of appellants Proposition 36 treatment program because his conduct demonstrated a complete and unequivocal refusal to undergo drug counseling treatment. On June 1, 2006, the trial court placed appellant on a three-year term of probation that included a 365-day stay in jail.
On June 15, 2007, appellant underwent a probation violation hearing. A probation officer testified that appellant had reported only once to the probation office—on June 23, 2006. Officer Susan Solley of the Los Angeles Police Department testified that she had arrested appellant on April 13, 2007, for possession of controlled substances. Officer Solley and her partner were about to stop appellant for riding a bicycle without a light when they saw him toss his jacket on the ground. Officer Solleys partner inspected the jacket and found a brown vial smelling of ether and containing an oily substance resembling PCP. They also found three baggies containing a substance resembling methamphetamine. Appellant testified at the hearing that he was not wearing a jacket that night. He saw a jacket hanging on a railing as he entered an apartment building to visit a friend. When he was leaving shortly thereafter, he saw a girl and two men and tried to tell them they had forgotten the jacket, but they quickly left. The officer had seen appellant putting down only his black shirt, which he had been carrying. Appellant also testified that he did not report to the probation department because he was in jail. He acknowledged that he was released in late November or early December 2006.
The trial court found the police officer credible as to what she had observed and the items she and her partner had recovered from appellant. The trial court also noted the probation officers testimony and found appellant in violation of the terms and conditions of probation. The trial court found that appellant was no longer amenable to probation and imposed a midterm sentence of two years.
We review the trial courts revocation of probation for abuse of discretion (People v. Rodriguez (1990) 51 Cal.3d 437, 440 (Rodriguez)) and will reverse the trial courts ruling only if its discretion was exercised in an arbitrary or capricious manner. (People v. Delson (1984) 161 Cal.App.3d 56, 62.) "[T]he United States Supreme Court has indicated that due process requires no stricter standard of proof in probation revocation hearings than a preponderance of the evidence." (Rodriguez, supra, at p. 441.) The governing statute, section 1203.2, subdivision (a), is "properly read as permitting proof by preponderance of the evidence." (Rodriguez, supra, at pp. 442-443; see also People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.) "[W]here the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test." (People v. Kurey (2001) 88 Cal.App.4th 840, 848, fn. omitted.)
We conclude that substantial evidence supports the trial courts finding that appellant violated at least two terms of his probation. He failed to report to the probation department, and he failed to obey the condition requiring him not to possess any controlled substances. There was no abuse of discretion, and probation was properly terminated.
We have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed. --------------- Notes: BOREN, P. J., DOI TODD, J., CHAVEZ, J.