Filed 10/18/17 P. v. Andrews CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
LAWRENCE KINGSLEY ANDREWS,
Defendant and Appellant.
|
F073610
(Super. Ct. Nos. 15CMS3784, 15CM2013)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
George J. Vasquez, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After a contested hearing, appellant Lawrence Kingsley Andrews was found to be in violation of probation. Probation was revoked and a prison sentence reinstated. Andrews filed a timely notice of appeal. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On October 23, 2015, Andrews entered no contest pleas in two cases. In case
No. 15CM2013, he pled to a misdemeanor violation of Vehicle Code section 23152, subdivision (b), driving a vehicle with a blood alcohol level of .08 percent or more; and a felony violation of Penal Code[1] section 273a, subdivision (a), child endangerment. In case No. 15CMS3784, he pled no contest to a misdemeanor violation of section 273.5, inflicting corporal injury on a spouse or cohabitant.
In exchange for his pleas, Andrews was to receive a suspended state prison term of six years on all counts, and placed on probation. Among the terms and conditions of probation were that he attend a 52-week batterers program and complete a child abuse prevention program.
At the plea hearing, the trial court inquired if a criminal protective order was in place and the prosecutor responded that one already had been issued, but “the agreement was a ten year.” The trial court responded that it would “take care of that at sentencing.”
A criminal protective order had issued in case No. 15CM3784 on July 21, 2015. That order expired three years from date of issuance, or July 21, 2018. The order prohibited Andrews from having electronic, personal, telephonic or written contact with the protected person, L.R.; it also prohibited him from having contact with L.R. through a third party, except an attorney of record. Andrews personally was served with a copy of the order at the July 21, 2015 hearing. The order included a warning that violation of the order “may be punished as a misdemeanor, felony, or contempt of court.”
Andrews was sentenced on December 1, 2015, to an aggravated term of six years in state prison for the child endangerment conviction; a concurrent 365 days for the Vehicle Code violation; and a concurrent 365 days for the misdemeanor corporal injury to a spouse or cohabitant conviction. The trial court suspended the prison sentence and placed Andrews on four years formal probation. He was ordered to complete a batterers’ treatment program, substance abuse treatment, and child abusers program.
The trial court also ordered Andrews to “comply with the criminal protective order issued by this court.” In addition, the trial court specifically ordered Andrews not to “annoy, harass, threaten, or have any contact with” L.R. The trial court later asked Andrews if he understood all the terms and conditions of his probation, to which Andrews responded affirmatively.
On December 4, 2015, L.R. answered her daughter’s cell phone when it rang; she had been using her daughter’s phone because hers was broken. She said “Hello” and Andrews responded by stating her name. L.R. was familiar with Andrews’s voice and when she realized it was him, she hung up. The phone number that showed on her daughter’s cell phone was Andrews’s cell phone number. Andrews also sent two text messages to L.R. on her daughter’s phone. The messages were to the effect that he was sorry and asked about some of his personal belongings.
At a review hearing on January 21, 2016, it was noted that Andrews had failed to date to sign up for the batterer’s treatment program. The People also informed the trial court that the victim, L.R., had requested a 10-year criminal protective order, which had not been issued at sentencing. The trial court was informed that Andrews was released from custody, he had contacted L.R. in violation of a condition of probation.
The trial court informed Andrews that it was continuing the hearing to allow probation to investigate the probation violations and file a report with the trial court. The trial court spoke directly to Andrews and stated “there was a term and condition [of probation] that you not have any contact with her.” Andrews responded, “Correct.”
The People asked that the trial court issue the 10-year criminal protective order at the status hearing, to which the trial court responded, “t’s a condition of his probation that he have no contact.” The People indicated the victim was asking for the 10-year criminal protective order; the defense stated it had no objection to its issuance.
The trial court read the terms of the criminal protective order to Andrews, who replied, “I absolutely agree.” The criminal protective order filed January 21, 2016, specifies that it expires on “12/1/2025.”
On January 29, 2016, a report of a probation violation was lodged with the superior court alleging Andrews violated an active criminal protective order that he have no contact with L.R. in that he contacted L.R. by phone on December 4, 2015. The hearing on the probation violation allegation was held on February 19, 2016.
L.R. testified to the phone call and text messages she had received from Andrews after he was released on probation. She also testified that Andrews had his mother contact her.
Andrews’s mother testified that she had contacted L.R., but that her son had not asked her to do so. Andrews testified that he did not call or send text messages to L.R. after he was released on probation. He also testified he never tried to contact L.R. through her daughter.
At the conclusion of testimony, Andrews argued that the People had not met their burden of proof. The People argued that L.R. testified she recognized Andrews’s voice in the call and knew his cell phone number, which is the number from which the call was made and the text messages sent.
The trial court articulated that the People had to prove the allegation of a probation violation by a preponderance of the evidence. The trial court found L.R.’s testimony to be credible; L.R. recognized Andrews’s voice; Andrews called L.R. by name when she answered; and the content of the two text messages indicated Andrews was addressing them to L.R. and not her daughter.
The trial court found that Andrews had violated his probation. At the March 18, 2016 disposition, the trial court stated, “Andrews knew exactly what he was doing when he phoned the victim.” The trial court declined to reinstate probation and imposed the previously suspended term of imprisonment.
A timely notice of appeal was filed on April 18, 2016. A certificate of probable cause was granted on April 26, 2016.
DISCUSSION
Appellate counsel filed a brief pursuant to [i]People v. Wende, supra, 25 Cal.3d 436 on January 18, 2017. That same day, this court issued its letter to Andrews inviting supplemental briefing. No supplemental brief was filed.
Proof of a probation violation by a preponderance of the evidence is sufficient to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 446.) As a term of probation, Andrews was ordered not to “annoy, harass, threaten, or have any contact with” L.R. The criminal protective order issued on July 21, 2015, prohibited Andrews from having electronic, personal, telephonic or written contact with L.R.; it also prohibited him from having contact with L.R. through a third party, except an attorney of record.
Here, L.R. testified to the acts committed by Andrews that violated the terms and conditions of probation and the criminal protective order issued July 21, 2015. The trial court found L.R.’s testimony to be credible, as opposed to the testimony of Andrews and his mother. The testimony of a single witness is sufficient to support a conviction, or in this case, a finding that probation was violated. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The probation violation finding is sustained and the judgment reimposing a prison sentence is affirmed.
