P. v. Kelsay

Filed 2/15/07  P. v. Kelsay CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

            Donna D. Kelsay appeals from a final judgment of conviction after revocation of probation and imposition of sentence.  Her court-appointed attorney has filed a brief raising no issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25  Cal.3d 436.

PROCEEDINGS BELOW

            On July  6, 2004, appellant was charged by the Lake County District Attorney with one count of welfare fraud (Welf. & Inst. Code, §  10980, subd.  (c)(2)), and two counts of perjury in the application for public assistance (Pen. Code, §  118).^[1]  On April  8, 2005, appellant pled guilty to the charge of welfare fraud and the remaining counts were dismissed with a Harvey waiver.^[2]  On May  20, 2005, imposition of sentence was suspended and appellant was placed on probation for three years.  Probation was conditioned on, among other things, the payment to the Department of Social Services of restitution in the amount of $4,202, plus interest, plus administrative costs for collecting and distributing the restitution payments.

            On September  1, 2005, the probation department filed a report and affidavit alleging that appellant had violated the terms of her probation by committing the new offenses of battery on a police officer (§  243, subd.  (b)), resisting or obstructing an officer (§§  69, 148, subd.  (a)(1)), and vandalism (§  594, subd.  (a)).  After a contested hearing at which appellant was found in violation of probation, probation was reinstated and modified by the imposition of a 180-day jail term, less applicable time credits.  At the request of the probation department, the terms of probation were modified by eliminating the duty to reimburse that department  for various administrative costs based on the fact that appellant's income derived solely from social security disability benefits.

            On April  3, 2006, the probation department again moved to revoke probation, this time alleging the new offense of unlawfully fighting and using offensive words in a public place (§  415).  After appellant admitted the offense, probation was reinstated and modified to include 303  days in county jail which, with good time and work time credits, equaled the time appellant had already served.

            On June  9, 2006, the probation department moved yet again to revoke probation, this time based on her unauthorized entry of property (§  602.5).  At a contested hearing on July  28, appellant was found in violation of probation.  On August  25, the court denied continued probation and imposed the low term of 16  months in state prison for violation of the original charge of welfare fraud (Welf. & Inst. Code, §  10989, subd.  (c)(2)).  The court also imposed a restitution fine in the amount of $300 and a corresponding suspended parole restitution.  Appellant was granted 260  days credit for time served and conduct credit of 130  days, for total presentence credits of 390  days.^[3]  Victim restitution in the amount of $4,202 was also ordered.  Appellant indicated her desire to appeal the revocation of probation by letter filed with the superior court on September  6, 2006.

FACTS

            The facts giving rise to the revocation of probation are taken from the report of the probation department filed with the court on June  9, 2006.  On the morning of June  4, Clearlake Police Officer Jay Labbe was dispatched to Art's Trailer Park on a report of a female undressing in public.  Appellant, who was fully dressed, told Officer Labbe she went to the park to recover her â€