P. v. Basua

Filed 4/10/07 P. v. Basua CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Ernest David Basua appeals the judgment (order revoking probation) entered following his plea of no contest to the willful infliction of corporal injury on a spouse (Pen. Code, 273.5, subd. (a)).^[1] The trial court sentenced Basua to three years in state prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts^[2]

On June 30, 2005, Basua and his wife, Sylvia Abelar Basua (Sylvia), had been married for approximately nine years. That morning, as Sylvia was getting ready to go to work, Basua came into her bedroom and began bothering her because he wanted to have sex with her.  When Sylvia refused, Basua spit in her face. The two began to argue and Basua struck Sylvia in the face and on the head with his hand. He then grabbed Sylvia by the back of her hair, threw her to the ground and punched and kicked her.

John Doe, Basuas 12-year-old son, was in the bedroom when the altercation occurred. After Basua began kicking and hitting Sylvia, John Doe ran from the room and grabbed the telephone. Basua followed John Doe, took the telephone from him and disconnected it.

Basuas two minor daughters, Jane Doe One and Jane Doe Two, were in the living room when the argument between Basua and Sylvia began. After seeing the fighting, they, accompanied by John Doe, ran from the house to a neighbors home and telephoned police.

2. Procedural History

On July 1, 2005, Basua was charged by felony complaint with the willful infliction of corporal injury on a spouse ( 273.5, subd. (a)), intimidating a witness by threat of force ( 136.1, subd. (c)(1)), and willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering or causing a child to be placed in a situation where his or her person or health is endangered (273a, subd. (b)). It was further alleged Basua had previously suffered four felony convictions within the meaning of section 1203, subdivision (e)(4), which precludes a grant of probation except in unusual cases where the interests of justice would best be served.

On July 14, 2005, Basua pleaded no contest to the willful infliction of corporal injury on a spouse ( 273.5, subd. (a)).

At proceedings held on August 11, 2005, the trial court dismissed all the remaining counts and allegations and sentenced Basua to the middle term of three years in state prison. The court then suspended the sentence and placed Basua on five years of formal probation under various terms and conditions, including that he serve 365 days in county jail. Basua was awarded presentence custody credit for 42 days actually served and 21 days of good time/work time.

In a report filed by Basuas probation officer on March 2, 2006, it was indicated that, after Basua was released from custody on November 1, 2005, he failed to report to his probation officer, had not respond[ed] to scheduled anti-narcotics tests and was not attending the [court-ordered] domestic violence batterers program. In addition, Basua had made no payment of ordered fees and fines. As a result of the report, the trial court revoked Basuas probation and issued a bench warrant for his arrest.

At the probation violation hearing held on August 30, 2006, Los Angeles County probation investigator Angela Jackson (Jackson) testified she had conducted an investigation with regard to Basuas compliance with the terms of his probation. Jackson stated, as a result of her investigation she had discovered Basua last reported to his probation officer on December 28, 2005. With regard to his financial obligations, Basua had made one $25 payment toward the total of $5,313 he had been ordered to pay. Although Basua had enrolled in a domestic violence program and attended nine sessions, he had then been terminated from the program for missing the next four classes. As to court-ordered narcotics tests, Basua had taken one. He had then failed to appear for three subsequently scheduled tests.

Based on Basuas failure to report to his probation officer, his failure to complete the domestic violence program and his failure to report for three out of four scheduled narcotics tests, the trial court found Basua to be in violation of his probation.

The trial court allowed Basuas wife, Sylvia, to address the court on the issue of sentencing. Sylvia stated, [Basua has] been very good. Hes been doing very well. Hes been going to church with us and his kids. I have four step kids through our marriage, and I have one. And hes been taking care of us financially. Im getting evicted right now. Hes the one taking care of our bills, and right now I dont have a way of paying those bills. He takes care of everything. [] . . . [H]es been going to work. Hes got a job. The reason for him missing his appointments . . . was because he works out of town. He rides on the bus. Only transportation is on a bus, and its really difficult when you are coming and going. [] And hes got a job lined up for him to be a maintenance man at an apartment complex, steady job. He wouldnt have to be worried about going in and out of town. Hed have a steady job, so he would be able to keep his appointments and schedule classes and things like that if necessary. Sylvia added that, since he had been placed on probation, she had not seen Basua under the influence of drugs and his behavior toward her had improved.

Basuas mother, Vivian Erickson (Erickson), also addressed the court. She stated, since his release from custody, Basuas ways [had] changed a lot. Basua had told Erickson he had been arrested for spousal abuse, but that such abuse would never happen again.

When Basua addressed the court he stated he was hoping for another chance at probation. He indicated he had obtained a job at a local apartment complex and should be able to make it to scheduled appointments. Basua stated he appreciate[d] the chance he had been given and believed it would be a waste . . . to do all this and have to go back to jail.

The trial court noted Basua had multiple violations of the conditions of his probation and he seemed to be run[ning] his own program by not complying with all [the] terms and conditions of probation. The court continued, He may be a fine family person. Im glad to hear that. He may go to church regularly. Im even happier about that. And he may have decided to curtail or terminate drinking, and he may have decided to curtail or terminate[] drug use if he was using . . . , but he did not make any effort to comply with his terms of probation. The trial court then denied Basuas motion to have the court recall or modify the terms of probation, found Basua to be in violation of probation and sentenced him to the previously imposed and suspended term of three years in state prison. Basua was awarded a total of 443 days of presentence custody credit consisting of 365 days previously served, 52 days of actual current credit, and 26 days of good time/work time.

On August 30, 2006, Basua timely filed a notice of appeal.

Counsel was appointed to represent Basua on appeal on October 17, 2006.

CONTENTIONS

After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed January 29, 2007, the clerk of this court advised Basua to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Basuas counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259. 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment (order revoking probation) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The facts have been taken from the probation report.