P. v. Moore

Filed 6/23/06 P. v. Moore CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed.

On December 5, 2003, Urlean Moore entered a guilty plea to battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d))^[1] and admitted serving two prior prison terms (§§ 667.5, subd. (b), 668). On January 8, 2004, the court suspended imposition of sentence and placed her on probation for three years subject to conditions, including conditions she serve 270 days in custody, pay restitution, report to the probation department as directed, remain law abiding, not use or possess a controlled substance or alcohol, and complete a residential drug treatment program as directed by the probation department. On October 19, 2004, after Moore admitted she failed to pay restitution, failed to remain law abiding, failed to report to the probation department and used alcohol and cocaine, probation was revoked and reinstated on condition Moore serve 365 days in custody, remain law abiding, and complete a residential drug treatment program. On September 7, 2005, after an evidentiary hearing and findings Moore failed to obey all laws and failed to complete a residential drug program as recommended by the probation department, the court again revoked probation. It sentenced Moore to prison for four years: the two-year lower term for battery causing serious bodily injury enhanced by two one-year terms for the prior prison terms. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Moore failed to complete a residential drug program as required by a condition of probation; and (2) whether the trial court abused its discretion in imposing the prison term instead of reinstating probation.^[2]

We granted Moore permission to file a brief on her own behalf. She has responded. Moore contends the evidence does not support the finding she violated a condition of probation and that she was denied effective assistance of counsel.

Probation violations.

"More lenient rules of evidence apply [at probation revocation proceedings] than at criminal trials [citation], and the facts supporting revocation need only be proved by a preponderance of the evidence." (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) Here the record includes testimony by Moore's probation officer that he gave Moore a list of approved drug rehabilitation programs and she did not enroll in any of them. Moore argues that she completed a short-term detoxification program at Volunteers of America and attended St. Vincent De Paul and Halcyon. The list of residential treatment facilities the probation department gave Moore is not in the record before this court. If Moore wishes to pursue a claim that she completed a drug rehabilitation program recommended by the probation department, she must file a petition for a writ of habeas corpus with the trial court. As the record before this court stands, it supports the trial court's finding that Moore did not complete an approved drug rehabilitation program.

Additionally, Detective Hall testified he contacted Moore on 16th Avenue and asked Moore if she had "a 20," meaning $20 worth of drugs. Apparently to determine whether Hall was a police officer, Moore handed him a cocaine pipe and asked him to take a "hit." He refused and she no longer talked to him about a drug purchase. Moore was subsequently arrested and a pipe Hall identified as the same pipe she held when he spoke with her earlier was retrieved in the area of the arrest. Moore argues Detective Hall's testimony that it was the same crack pipe she held is not credible because if you have "[s]een one crack pipe, you have seen them all."

In determining whether a trial court finding is supported by substantial evidence, we may not usurp the trier of fact's assessment of credibility. " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684.) Hall's testimony that the cocaine pipe found near where Moore was arrested is the same cocaine pipe she held when he spoke with her is neither physically impossible nor is its falsity apparent without resorting to inferences and deductions. Because the court found Moore possessed narcotics paraphernalia (Health & Saf. Code, § 11364), she failed to obey all laws and violated a separate probation condition.

Effective Assistance of Counsel

Moore also claims she was denied effective assistance of counsel in the trial court through failure to investigate prospective witnesses and possible defenses. "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Moore on this appeal.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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

^[2] Because Moore entered a guilty plea, she cannot challenge the facts underlying the conviction. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.