Filed 1/31/18 P. v. Clotfelter CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. BRUCE CLOTFELTER, Defendant and Appellant. |
A150449
(Napa County Super. Ct. No. CR174307
|
Appellant Bruce Clotfelter appeals after a judgment following a contested probation revocation hearing where he was found in violation of probation but then reinstated on probation with additional conditions. Appellant’s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Appellant has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.
Underlying Offense
On December 4, 2015, imposition of sentence was suspended and appellant was placed on probation following his guilty plea to failing to register as a sex offender, a felony (Pen. Code, § 290.012, subd. (b)).[1] The plea was part of a negotiated disposition.
Proceedings to Revoke Probation
On November 1, 2016, the Napa County District Attorney filed a petition to revoke appellant’s probation on the ground that he failed to obey terms of probation by “[p]ossessing deadly or dangerous weapons.” On the same day, the Napa County probation office filed a petition to revoke probation on the same ground. Probation was summarily revoked and the court appointed counsel who, on appellant’s behalf, acknowledged receipt of the petitions and entered a denial of the allegations. The court set a date for a contested probation hearing.
The probation revocation hearing was held on November 15, 2016. Jodie Nugent, a deputy probation officer with Napa County probation, testified that one of appellant’s conditions of probation was that he not own or possess any firearm, ammunition or dangerous or deadly weapon. On cross-examination, she testified that she had never “gone over” with appellant “what a dangerous weapon is.” She knew he was a handyman and that handymen need tools to do their work. She had not searched appellant’s home since he had been on probation, although she attempted to do so once to determine where he lived; he was not at home so she left.
Napa Police Sergeant Amy Hunter testified that on October 28, 2016, she conducted a compliance check on appellant, as a section 290 registrant, to be sure he was living at the registered address and complying with the terms of his probation. Hunter went to appellant’s registered address, where his aunt also lived. Appellant was not present, but his aunt was, and when Hunter explained the purpose of her visit, she was given permission by the aunt to enter the home. Hunter searched appellant’s bedroom and areas she knew he had access to, which excluded, for example, the aunt’s bedroom. When Hunter entered appellant’s bedroom, she saw a “military-style ceremonial sword” in a scabbard hanging on the wall; the blade measured 32 inches and was dull on both sides. Appellant’s aunt called him at that point, and he agreed to meet at the house. Hunter continued searching appellant’s room and found a “folding personal protection-style knife” with a four-inch blade in the drawer of a bedside table. When appellant arrived, he said that he had a “Hummer Bowie knife” set in a drawer in the laundry room. Another officer retrieved the Bowie knives; one knife blade was seven and a quarter inches long and the other was four and a half inches long. The officers also found military items such as military ribbons, Navy epaulets, and an “Israeli defense police hat,” as well as a Mexican passport and a U.S. passport.[2] Appellant told Hunter that he had received the sword as a gift from a close friend a long time ago and kept it because it was special to him, admitting however that he had numerous swords which he had earlier sold when he was placed on parole.
Appellant testified in his own defense. He knew on October 28, 2016 (the date Sergeant Hunter found the weapons) that his probation conditions contained a weapons prohibition, but his probation officer never defined what a “dangerous weapon” was, and never went over appellant’s personal possessions with him to identify what would qualify as a dangerous weapon. He didn’t consider any of the seized items to be dangerous weapons, and didn’t remember the folding knife was in his bedside table. He had the Bowie knife set with him when he moved into the house in 2009 and didn’t think about it until Hunter asked him on October 28 whether he had any other weapons. On cross-examination, he admitted that the underlying case for which he was on probation was, when filed, a three strikes case, and that if he was found guilty he could potentially go to prison again. He also admitted it was his general understanding when he was placed on probation that if he violated probation he could go back to prison. Appellant admitted that after he served a sentence from a Butte County case, it became an “S.V.P. commitment,” and he was released in 2007.
Appellant called Nicole Suard, an attorney, as a character witness. She knew appellant’s family for 25 years, and had known appellant since he had been released in 2007. He had a reputation as an honest and truthful person. On cross-examination, Suard admitted that she was aware of his history, including that he was sentenced to 10 years in prison for molesting five boys, but did not know that the exact date was 1989 or that the boys were between the ages of nine and 13. She also was aware that in 1996 he entered a plea in a federal case for impersonating a military officer, and agreed that after that plea he “was violated and sent back to prison for a time.” Further, she was aware that at some point he was committed to Coalinga State Hospital as a sexually violent predator.
The court heard arguments from counsel, and found appellant in violation of his probation, stating that “I don’t even think it’s a close call. I mean we’re not talking about steak knives, or butter knives, or a true pocket knife, like a Swiss army knife. These are obviously dangerous weapons. [¶] And Mr. Clotfelter is obviously an intelligent human being. I watched him testify. He’s certainly been through the process before, understands. I don’t think there is any question, based on the evidence presented to me, that he knew these were weapons. Whether he simply didn’t think it was significant, or serious, or what, I don’t know. And that’s really more of a sentencing issue for the Court. [¶] Clearly there is a violation of probation. He’s on probation. He has a no weapons clause. These are clearly weapons.”
At the sentencing hearing on December 28, 2016, the district attorney sought a two-year state prison commitment. Defense counsel argued for probation, but objected to some of the terms recommended by the probation department, which included an electronics search condition, assessment for sex therapy, staying at least 100 yards away from places where children gather, polygraph testing, and appellant not possessing any children’s clothing, toys or games. Defense counsel argued there was no nexus between these conditions and the violation of probation.[3]
The trial court stated that it had read and considered the probation officer’s report as well as letters in support of appellant. The probation officer’s report described appellant’s “very serious criminal history which labels him as a sexually violent predator.” The history includes a 1989 felony violation in Butte County for child molestation, a 1996 conviction for impersonating a military officer, and the underlying offense here of failure to register as a sex offender. The report also indicated that at the time of sentencing, there was an ongoing investigation into appellant’s possession of phone and social media videos of young men.[4] The court re-admitted appellant to probation upon specific conditions per the recommendation of the probation department. Stating that it understood the People’s concerns, the court believed that the case did not warrant a state prison commitment. But “[o]bviously his background both in terms of the prior convictions and being previously found to be a sexually violent predator is disturbing, and when I combined that with the facts of this case that led to the finding of the weapons, I do think that the conditions that Probation’s recommending are appropriate. In particular, the electronic device condition as well as simply assessing him for the—whether or not he’s in need of additional sex offender therapy. And I do think the conditions with regards to children as recommended are appropriate given that sort of landscape of the case.” The trial court imposed the conditions recommended by probation.
Among other conditions, defendant was ordered to serve 60 days in jail with 25 days credit for time served.
DISCUSSION
We have reviewed the record on appeal in its entirety and conclude that there are no meritorious issues to be argued.
Appellant was at all times effectively represented by counsel, who protected his rights and interests.
Appellant was given notice and hearing on the alleged violations of the terms of his probation. The revocation hearing was conducted in compliance with all constitutional requirements.
We see no error in the trial court’s decision to revoke appellant’s probation, and then to reinstate it. No ruling by the trial court in admitting or denying evidence amounted to an abuse of discretion or legal error.
None of the conditions imposed when probation was reinstated amounts to an abuse of the trial court’s discretion. (See People v. Lent (1975) 15 Cal.3d 481.)
We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436.
The judgment is affirmed.
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Miller, J.
We concur:
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Kline, P.J.
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Stewart, J.
A150449, People v. Clotfelter
[1] All statutory references are to the Penal Code.
[2] The military items were of concern to Sergeant Hunter. She filed a declaration in support of the issue of bail in connection with the petition to revoke appellant’s probation which stated that “[a]fter being released on parole in the 90’s, [appellant] dressed up in a military flight suit with military insignia, and passed himself off as a ‘Top Gun’ fighter pilot, named ‘Commander Talon Fox’. He visited over twenty elementary schools in the Roseville, CA area and claimed to be scouting for schools for his children (he has no children). He signed Navy posters and talked about his ‘career’ to the children . . . . His parole was violated and he was sent back to prison. He was convicted in Federal court for posing as a military member and sentenced to 14 months.” When the district attorney mentioned in closing argument at the probation revocation hearing that appellant’s “history was concerning,” reciting these facts, the court sustained defense counsel’s objection that this was not evidence before him on the probation violation itself.
[3] At the end of the probation revocation hearing, after defendant had been found in violation of probation, in the context of the court considering bail pending sentencing, defense counsel stated that appellant had been castrated and “he’s deemed no longer to be an S.V.P.”
[4] As appellant’s counsel notes, on January 20, 2017, the Napa County District Attorney filed a petition to revoke probation alleging that appellant violated the underlying probation granted in 2015 by failing to stay 100 yards away from any place where children gather and associating with children under the age of 18. Whatever may have resulted from the January 20, 2017 petition to revoke probation is not before us in this appeal.
