P. v. Boesman

Filed 5/1/07 P. v. Boesman CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.

Jonathan B. Steiner and Richard L. Fitzer, under appointments by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

David James Boesman appeals from a judgment entered following his no contest plea to second degree robbery (Pen. Code, 211). Pursuant to his negotiated plea, the allegation that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) was dismissed. He was sentenced to the middle term of three years, execution of the sentence was suspended, and he was placed on formal probation for three years under certain terms and conditions. Included in the conditions of probation, he was ordered to serve 365 days in jail and given credit for 365 days served, to submit to drug and alcohol testing at the direction of the probation department and ordered not to consume alcoholic beverages. He appealed, challenging the imposition of drug and alcohol conditions as terms of his probation.

The evidence at the preliminary hearing established that on January 20, 2006, at approximately 5:20 p.m., Fouad Fattouh was working in his tobacco shop in Culver City when appellant approached him and said, Give me the money. Mr. Fattouh stood up to open the cash register and appellant said, Hurry up, mother fucker. And he [said] I will shoot you. Appellant lifted up his shirt and Mr. Fattouh saw the black handle of the gun near [appellants] stomach. Mr. Fattouh was frightened; he opened the cash register and gave appellant the money.

At sentencing, appellant objected to the condition that he not be allowed to drink alcohol and to the drug thing because there were no drugs involved. The court noted appellant had a DUI conviction in 1999 and possession of controlled substances in 2002 and 2005. Additionally, the probation report indicated appellant had a marijuana conviction in 2005. The court stated it was concerned if appellant abused alcohol or drugs, his ability to make good choices was lessened.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On January 4, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist. In view of appellants history, imposition of conditions of probation that he abstain from alcohol and drugs and submit to drug and alcohol testing were reasonably related to his future criminality and within the sound discretion of the trial court. (See People v. Balestra (1999) 76 Cal.App.4th 57, 83-84; People v. Lent (1975) 15 Cal.3d 481, 486.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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