P. v. Francis

Filed 3/15/07 P. v. Francis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Janice Claire Croft, Judge. Affirmed.

Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Cornelius Francis (Francis) appeals the judgment (order revoking probation) entered following his plea of no contest to willfully inflicting corporal injury on his spouse, the mother of his child. (Pen. Code, 273.5, subd. (a).)^[1] The trial court sentenced Francis to the upper term of four years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Following a preliminary hearing, an information was filed alleging that on or about May 11, 2005, Francis willfully inflicted corporal injury on his spouse and the mother of his child, Theresa Reed, in violation of section 273.5, subdivision (a). At a hearing held on June 15, 2005, counsel for Francis indicated his client was interested in a negotiated plea agreement being offered by the People. Under the terms of the agreement, Francis would plead no contest to the alleged charge and, in exchange, he would be placed on 5 years formal probation [and] receive 6 months in county jail . . . .

After Francis indicated he understood the terms of the plea bargain, the prosecutor advised Francis of his constitutional rights and the consequences of his plea. The following colloquy then occurred: [The prosecutor]: . . . If you violate any terms or conditions of probation the court can sentence you to a maximum of four years [in prison]. Do you understand that? [] [Francis]: Yes. [] [The prosecutor]: And do you agree there is sufficient aggravating factors in this case to warrant a high term of four years in the event that you violate probation? [] [Defense counsel]: I didnt discuss that with him. [] [The prosecutor]: Okay. [] (Defendant confers with his counsel) [] [Francis]: I understand. [] [The prosecutor]: And with respect to the finding of the 4 years you have a right to a trial, the right to confront and cross-examine witnesses, the right to the subpoena power of the court to bring in witnesses . . . , [and the] right against self-incrimination . . . . Each of those rights apply to the finding of the high term of four years. Do you understand and waive those rights to a finding of the four years in the event you were to be found in violation of probation? [] [Francis]: Yes.

Following a short discussion regarding the imposition of a restitution fine, the following occurred: [The prosecutor]: Do you have any questions about your plea? [] [Francis]: No. [] . . . [] . . . [The prosecutor]: Do you understand by pleading today you will also be giving up any rights to appeal the plea and sentence in this case? [] [Francis]: I understand. Francis then pleaded no contest to inflicting corporal injury on his spouse, the mother of his child, in violation of section 273.5, subdivision (a). The plea was accepted by the trial court pursuant to an agreed disposition.

Sentencing proceedings were held on September 8, 2005. The trial court, after stating it had read and considered Franciss probation report, indicated proceedings were suspended. The court then placed Francis on five years felony probation, under the terms of which he was to, among other conditions, stay away from Theresa Reed and attend a 52-week domestic violence class.

Probation violation proceedings were instituted on September 29, 2005. Francis, however, failed to appear and a warrant was issued for his arrest. He was taken into custody on November 30, 2005.

At proceedings held on January 5, 2006, Francis made a motion for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. After holding a hearing outside the presence of the prosecutor, the trial court denied the motion.

A hearing on Franciss alleged probation violations was held on January 27, 2006. The trial court noted Francis had been charged with both contempt, in that he had disobeyed the trial courts order to stay away from Theresa Reed, and making a terrorist threat against Reed. After stating it had read several letters submitted on Franciss behalf, the trial court indicated it was inclined to have Francis serve 120 days at C.R.D.F. so that he could either start or complete the domestic violence classes which had been previously ordered.

Following a discussion between the trial court and the parties, it was decided Francis would plead guilty to contempt of court, a misdemeanor. The prosecutor addressed Francis, stating, Its my understanding you will be entering a plea of guilty to . . . contempt of court. You will be placed on . . . two years summary probation. That plea will constitute a violation of your [present] probation [for your conviction of willfully inflicting corporal injury on your spouse,] for which you can go to prison . . . . Thats not going to happen. The court is going to give you the remainder of your county time that you have left so there is no more county time left after this violation. If there are any more violations[,] I will be asking the court to impose state prison. . . . After indicating he understood, Francis pleaded no contest to one count of contempt of court in violation of section 166, subdivision (a)(4).

The trial court suspended imposition of sentence and placed Francis on summary misdemeanor probation for a period of three years. In furtherance of justice pursuant to section 1385, the trial court dismissed the count alleging Francis had made a terrorist threat. Francis then admitted, based on his plea of no contest to contempt, he was in violation of his probation in the matter in which he had pleaded no contest to the willful infliction of corporal injury on his spouse.

At proceedings held on March 29, 2006, the trial court sentenced Francis for violation of probation in his corporal injury on his spouse case. The court reinstituted probation on the same terms and conditions as previously had been imposed, then reminded Francis he was to have no contact[,] directly or indirectly with [the victim of that crime,] Theresa Reed . . . .

At proceedings held on April 21, 2006, Los Angeles County Probation Officer Carol Clark testified she had received a telephone call from Theresa Reed during which Reed indicated Francis had telephoned her and made veiled threats. Francis had apparently told Reed, if she telephoned police, Francis would send someone out to injure or harm [her] in some kind of a way. Based on the testimony of the probation officer, the trial court revoked Franciss probation and issued a bench warrant for his arrest. Francis was taken into custody on July 24, 2006.

At proceedings held on August 22, 2006, Theresa Reed testified, after he was released from county jail, Francis called her on the telephone approximately 20 times over the course of several days. In some instances, he left voice messages threatening Reed. On one occasion, Francis left a message stating, if Reed did anything to cause Francis to be sent to jail, he was going to send [her] up also.

Deputy Probation Officer Vincent Albert testified he had been supervising Franciss probation. At some point, Albert received tape recordings of telephone calls Francis had made to Reed. The trial court listened to recordings of two of those telephone calls.

Deputy Probation Officer Jack Sun testified he had performed an investigation report on Francis. According to Suns findings, Francis had failed to complete any of the domestic violence classes he had been ordered to attend, had made none of the monetary payments ordered, and had failed to report to his probation officer.

Francis testified, shortly after he had been released from custody, he reported to his probation officer and obtained information regarding the domestic violence classes he had been ordered to attend. Although he had registered for the classes, Francis had not yet attended any. Francis admitted telephoning Reed in order to arrange a time during which he could visit with their son. However, Francis stated he never threatened Reed; he believed the voice on the tape recordings of the calls did not sound like his voice.

The trial court found Francis had continuously disobeyed the courts orders. As a result of his disobedience of at least one order, Francis had pleaded no contest to contempt of court, then admitted having violated the terms of his probation. The trial court further indicated it believed Francis was a very angry man who was not going to stop contacting the victim. In view of these aggravating factors, the court ordered probation to remain revoked and sentenced Francis to the upper term of four years in state prison. Francis was given credit for 305 days actually served and 152 days of good time/work time, for a total of 457 days of presentence custody credit.

Francis filed a timely notice of appeal on August 23, 2006. This court appointed counsel to represent Francis on appeal on October 25, 2006.

CONTENTIONS

After examination of the record, Franciss appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice dated January 5, 2007, the clerk of this court advised Frances to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Franciss 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.)^[2]

DISPOSITION

The judgment (order revoking probation) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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

^[2] In view of the fact the upper term of four years was imposed for Franciss willful infliction of corporal injury on his spouse in violation of section 273.5, subdivision (a), appointed appellate counsel could have argued the United States Supreme Courts case in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856; 2007 WL 135687], is applicable. However, the contention would have been without merit. The imposition of the upper term was based in part on the fact of Franciss conviction of contempt. In addition, the record establishes, before he entered his plea to willfully inflicting corporal injury on his spouse, Francis effectively admitted there existed sufficient aggravating factors to warrant a high term of four years should he violate the conditions of his probation. Finally, at the proceedings during which he entered his plea to willfully inflicting corporal injury on his spouse, Francis, with respect to the finding of the 4 years, specifically waived his right to a trial, to confront and cross-examine witnesses, to subpoena witnesses and the right against self-incrimination.