P. v. Okiyefa
Filed 7/21/06 P. v. Okiyefa CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
| THE PEOPLE, Plaintiff and Respondent, v. JOHN OKIYEFA, Defendant and Appellant. | B184719 (Los Angeles County Super. Ct. No. BA 264863) |
APPEAL from a judgment of the Superior Court of Los Angeles County, C. H. Rehm, Judge. Affirmed in part; remanded with directions in part.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
John Okiyefa appeals from a judgment entered after the trial court found him in violation of probation following a contested hearing. We remand with directions to hold a hearing and determine the attorney fees, if any, appellant is required to pay for his appointed counsel. We affirm the judgment in all other respects.
By information filed on July 7, 2004, appellant was charged in count one with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))[1] and in count two with battery causing serious bodily injury (§ 243, subd. (d)). The information further alleged that appellant personally inflicted great bodily injury in committing those offenses. (§ 12022.7, subd. (a).) Appellant pleaded not guilty, waived his right to a jury and stipulated to a bench trial.
On September 16, 2004, the trial court found appellant guilty of both counts and found the alleged enhancement to be true. Based on this conviction (case No. BA264863), the court found appellant was in violation of his probation in prior cases, case Nos. 3CR11806 and BA187996. At the probation and sentencing hearing on September 17, 2004, the trial court placed appellant on probation for three years and suspended the execution of a six-year sentence, consisting of the midterm of three years as to count one plus an enhancement of three years. The court stayed count two under section 654.
Appellant was directed to pay a restitution fine of $200, a probation administration fee and the cost of probation services as directed by his probation officer. The court also imposed various terms and conditions of probation. These included that appellant report to the probation officer within 48 hours after release from custody and that appellant obey all laws, rules, regulations and orders of the court and the probation department. The court also ordered appellant to complete a one-year mental health residential program at River Community, make restitution to the victim in the sum of $2,500 and pay a court security fee of $20.
On January 18, 2005, the probation department filed a supplemental report alleging that appellant had been arrested by the Beverly Hills police department on December 28, 2004, for suspected theft and fare evasion. Appellant was sentenced to time served and released to the United States Immigration Department for deportation proceedings. The report informed the court that appellant was not in compliance with the terms of his probation. Among other things, appellant had never reported to the probation department. He was ordered to report and had refused to do so. Appellant had last reported to his probation officer on October 27, 2003. He also had failed to pay any part of the fines and restitutions imposed by the court and had continued to come into contact with law enforcement.
The trial court held a probation revocation hearing on June 16, 2005. The court found that appellant had violated the terms of his probation in case No. BA264863 and revoked appellant's probation.[2] The court sentenced appellant to a six-year term in prison, including a three-year sentence on count one plus a three-year sentence for the great bodily enhancement. The court selected the midterm of two years as the base term on count two and stayed the sentence under section 654. Appellant received a parole restitution fine of $200, which was stayed with the stay to become permanent upon the successful completion of parole, and a custody credit of 297 days (134 days previously served plus 109 days in actual custody and 54 days of good time/work time). The court additionally ordered appellant to pay a restitution fine of $200. The court further ordered appellant to pay attorney fees in the amount of $1,054.84 pursuant to section 987.8 and informed appellant he had the right to see a financial evaluator if he believed he did not have the financial ability to pay.
Appellant filed a timely notice of appeal.
FACTS
1. The Underlying Offenses
The probation report indicates that the victim and witness were outside the victim's business near Normandie Avenue and Wilshire Boulevard in Los Angeles County, when appellant walked up to the victim and asked for a cigarette. The victim told appellant that he did not have any more cigarettes. Appellant became demanding and crouched in front of the seated victim. Appellant began â€
