P. v. Heard

Filed 1/30/07 P. v. Heard CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On May 27, 2005, appellant Charles Heard entered a plea of guilty to felony possession of a firearm. (Pen. Code,  12021, subd. (a)(1).) On June 24, 2005, the trial court suspended imposition of sentence and placed appellant on three years formal probation, and imposed a 90-day jail sentence, community service hours and certain fines and fees. In May 2006, following a probation revocation hearing, the trial court modified appellants probation, imposing an additional nine-month jail sentence and extending probation until July 8, 2008. A timely notice of appeal from this probation modification was filed. Appellants counsel raises no legal issues, but asks that we independently review the record to determine if any arguable issues exist. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel advised his client in writing that a Wende brief was being filed and that appellant had the right to personally file a supplemental brief in this case within 30 days. No such brief was filed.

Background

Following his placement on felony probation in 2005, appellant was the subject of numerous motions to revoke probation filed by the probation department. On September 9, 2005, the probation department filed a motion to revoke probation alleging a failure to complete any hours of community service. Appellants probation was reinstated on the same terms, and he was directed to complete the balance of his jail time on the sheriffs work alternative program.

On March 10, 2006, the probation department filed a motion to revoke probation alleging appellant was a suspect in a San Francisco police investigation for evading a police officer. It does not appear that any hearing was ever held on this motion and, on March 22, 2006, appellant was reinstated on probation and released from custody. The motion to revoke was withdrawn.

On or before May 11, 2006, the probation department filed a motion to revoke probation alleging appellant committed an act of vandalism. On May 26, 2006, a contested hearing was held on that motion. Appellant was represented by counsel at that hearing. Louise Crittendon, the great-grandmother of appellants daughter, testified that on April 25, 2006, appellant came to her door and started screaming and asking why Louise told her granddaughter not to let appellant see his child. Louise told appellant she did not know anything about it and closed her door.

After appellant left Louises door, Louise testified she could hear banging. After appellant drove off, Louise testified she went over to her granddaughters residence and saw the door had been kicked in. Louise testified that she did not actually see appellant hitting the door, but appellant had been the only person outside at the time.

Louise testified that she had seen the metal gate near where her granddaughter lives one and one-half hours earlier, before appellants arrival, and, at that time, it was undamaged.

Police Officer Bryan Tuvera testified that on April 25, 2006, he checked a metal gate at 166 Shakespeare Street in San Francisco and the lower left portion of that gate had a large indentation in it.

Sheena Crittendon, the mother of appellants daughter, testified appellant was her ex-boyfriend, and he came to her house on April 25, 2006. Appellant wanted to give their daughter something he had bought for her. Sheena went outside to let appellant see their daughter, but appellant swore at Sheena and left. Sheena became angry and kicked the gate. Sheena testified that she offered to pay her mother $400 for the damage to the gate, because she was the one who did it.

Following the conclusion of the hearing, the court ruled that it disbelieved the testimony of Sheena that she damaged the gate. Instead, the court concluded appellant was responsible for kicking and damaging the gate. Substantial evidence supports this determination. The court then heard from the parties regarding sentencing and properly exercised its discretion in reinstating probation and adding an additional jail term.

Disposition

There are no arguable issues. The order is affirmed.

SIMONS, J.

We concur.

JONES, P. J.

MILLER, J.^*

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^* Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.