P. v. Brooks

Filed 2/14/07  P. v. Brooks CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Gerard S. Brown, Judge.  Affirmed.

            Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.

            Defendant was convicted by guilty plea of a violation of Penal Code^[1] section 289, subdivsion (d), sexual penetration of an unconscious person, and sentenced to probation, the terms of which included a year in the county jail.  The remaining count of rape of an unconscious person in violation of section 261, subdivision (a)(4), was dismissed.

            Defendant was arrested at his home for domestic violence, and after a contested violation of probation hearing, defendant was found to be in violation of his probation and sentenced to the middle term of six years.

FACTS

            The events that led to the defendant's conviction are recounted in the preliminary hearing conducted in this matter.  That hearing revealed that on August 22, 2004, the victim had been out drinking with her boyfriend and others until very late in the evening and into the morning hours.  The group ended up at the apartment of a friend, and defendant and her boyfriend retired to a bedroom where they had sexual relations and fell asleep.  The victim's boyfriend left, and the victim, still groggy from the effects of a late night of drinking and partying, awoke in the bed to find defendant on top of her, engaging in sexual intercourse.  The victim immediately ordered the defendant to get out of her room and criminal charges were taken against defendant.  After the preliminary hearing, defendant entered a negotiated guilty plea to count II of the information, sexual penetration of the victim while she was unconscious, in violation of section 289, subdivision (d).

            Subsequent to defendant's grant of probation, police were summoned to defendant's residence in connection with a domestic violence call.^[2]  When police arrived, they found defendant's wife and his 18-month-old daughter at the apartment.  Defendant's wife told officers that defendant needed money, and the wife told defendant to get a job.  Defendant became angry and tried to wrestle his wife's purse from him.  The purse was torn from the victim's shoulder and she was thrown to the floor.  Defendant kicked the victim several times on her legs, arms and buttocks.  A large bruise was visible on the victim's arm, and her chest area was red with scratch marks.

            During the probation violation hearing, the victim repudiated virtually everything she told the police and took the blame for the family melee as the instigator.  She was subsequently impeached by the observations of the investigating officer and her comments that were recorded in the police report.  Defendant testified that the victim was actually the perpetrator of the violence, and that he had to disarm his wife, who threatened him with a butter knife.  However, the investigating officer noted that neither spouse discussed a butter knife during the investigation at the apartment.

            The trial court found by a preponderance of the evidence that defendant violated his probation and sentenced him to the middle term of six years.

DISCUSSION

            Defendant appealed, and upon his request, this court appointed counsel to represent him.  Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court undertake a review of the entire record.

            We have invited defendant to file a supplemental brief, which he has done.  In defendant's brief, he complains that his trial counsel did not visit him while in jail and was inadequately prepared to conduct his violation of probation hearing.  Defendant also complains in his letter brief that the length of the sentence is too long and he has had to face up to his misconduct and is now ready to return to society.  As to defendant's first contention concerning the effectiveness of his trial attorney, defendant did not make that contention in the trial court, and a review of the record suggests that defendant's trial counsel was fully prepared and did an excellent job presenting defendant's case.  As to defendant's second contention concerning the length of his sentence, defendant has by his own words benefited from the insight gained in being around others who are incarcerated.  Defendant will have further time to reflect on his misdeeds and gain even further insight into the consequences of poor choices.

            We have completed our independent review of the record and we find no arguable issues.

DISPOSITION

            The judgment is affirmed.

            NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

                                                                                                            HOLLENHORST                 

                                                                                                                                                        J.

We concur:

            RAMIREZ                             

                                                     P.J.

            RICHLI                                  

                                                        J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

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

            ^[2] The circumstances surrounding the violation of probation are taken from the transcript of the violation of probation hearing pursuant to People v. Vickers (1972) 8 Cal. 3d 451.