P. v. Jones
Filed 4/18/07 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. KEITH JEROME JONES, Defendant and Appellant. | E041871 (Super.Ct.No. FSB043032) OPINION |
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest, Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant pleaded guilty to one count of petty theft with a prior (Pen. Code, 666)[1]and admitted that he had suffered three prior prison terms within the meaning of section 667.5, subdivision (b). In exchange, the parties agreed defendant would receive a stipulated sentence of six years, but the sentence would be suspended with defendant placed on formal probation under various terms and conditions.
Defendant subsequently violated probation by committing new offenses. His probation was revoked, and he was sentenced to the previously suspended sentence of six years in state prison.
I
FACTUAL AND PROCEDURAL BACKGROUND[2]
On February 10, 2004, defendant entered the Home Depot store in San Bernardino and proceeded to conceal several items under his jacket. He left the store without paying for the items. He was contacted outside the store and eventually arrested.
A felony complaint charging defendant with petty theft with a prior ( 666) was filed on February 13, 2004.
On February 25, 2004, defendant pleaded guilty to the charge and admitted that he had suffered three prior prison terms within the meaning of section 667.5, subdivision (b). In return, the parties agreed that defendant would be sentenced to a stipulated term of six years (the upper term of three years for the current offense, plus three additional one-year terms for the prior prison term enhancements), but that the sentence would be suspended and defendant would be placed on three years formal probation. At the time of the taking of the plea, the court informed defendant that he would be placed on formal probation under various terms and conditions and that if defendant did not abide by those terms, he would be sentenced to the six-year suspended sentence. Defendant indicated that he understood.
On April 28, 2004, defendant was sentenced as agreed. His probation conditions included serving 365 days in county jail and then entering the Inroads program. Defendant agreed to the terms and conditions of probation. As a condition of the plea, defendant waived and gave up any right to appeal from any motion he could have brought or could bring from the conviction and judgment in this case.
From April 28, 2004, through May 26, 2006, defendant successfully participated in the Inroads program and was placed in the Salvation Army Adult Rehabilitation Center program.
On May 26, 2006, a vehicle defendant was driving was pulled over by San Bernardino County Deputy Richard Debevec. After the deputy approached the vehicle, he discovered defendant was on probation and asked defendant if there was anything in the vehicle that would violate his probation. Defendant initially said no but then admitted that there was some marijuana folded up in a magazine on the dashboard and a marijuana cigarette in the ashtray.
Deputy Debevec found the marijuana, and upon a further search of the vehicle, he discovered a blue gym bag with a mens leather wallet in it. Inside the wallet was a debit card in the name of Erica Glander. Deputy Debevec asked defendant where he obtained the debit card. Defendant stated that the wallet was a gift from his passenger, Kathy Taylor, and that he did not know the debit card was in there. Defendant and Taylor were both arrested.
Deputy Debevec later asked the owner of the debit card if she had lost her card. She stated that five months earlier, her car had been broken into on the same street where the traffic stop was conducted; her purse, with the debit card in it, had been stolen.
Taylor testified that the marijuana belonged to her. She also stated that she had found the mens leather wallet on the street and thought it was totally empty. She gave the wallet to defendant as a gift.
A petition to revoke defendants probation was filed on July 21, 2006, alleging that defendant violated the terms and conditions of his probation by being arrested for receiving stolen property and possession of marijuana. A felony complaint was also filed on these charges in case No. FSB056768.
A preliminary hearing in case No. FSB056768 and a probation revocation hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451 (Vickers) were held concurrently on November 1, 2006. Following the presentation of evidence, the trial court found defendant violated the term of his probation that he violate no law and revoked defendants probation.[3] Defendant was then sentenced to the previously imposed, but suspended, sentence of six years in state prison.
II
DISCUSSION
Defendant appealed, challenging the Vickers hearing only, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the 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 potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief and he has done so. In his supplemental brief, defendant raises one purported arguable issue relating to whether there was sufficient evidence to establish his probation violation resulting in revocation of probation. We have reviewed the entire record and the contentions of both counsel and defendant and have found no arguable issues.
The standard of proof that a trial court uses to determine whether a probationer has violated a term of his probation is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Trial courts are granted great discretion in deciding whether
or not to revoke probation. (Id. at p. 445; see also 1203.2, subd. (a).) Absent abuse of that discretion, an appellate court will not disturb the trial courts findings. (People v. Self (1991) 233 Cal.App.3d 414, 417.) [T]here is no abuse of discretion in revocation where it appears from the record that the accused has violated the terms and conditions of probation. (People v. Nelson (1967) 257 Cal.App.2d 282, 285-286.)
The record, as set out above, contains sufficient evidence to support the trial courts findings, by a preponderance of the evidence, that defendant violated his probation by violating the law when he committed the new offenses of possession of marijuana and receiving stolen property. Because of this violation and the circumstances under which defendant was fortunate enough to be placed on probation in the first place, we conclude that the trial court did not abuse its discretion in revoking defendants probation and imposing the stipulated six-year prison sentence he had initially avoided.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P.J.
MILLER
J.
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[1] All future statutory references are to the Penal Code unless otherwise stated.
[2] The factual background of defendants petty theft with a prior offense is taken from the probation report. The factual background of his new offenses is taken from the probation revocation hearing.
[3] The court also found that there was sufficient cause to believe that the defendant is guilty of the crimes charged.
