P. v. Rojas

Filed 10/12/07 P. v. Rojas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner, Judge.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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FACTS AND PROCEEDINGS

Appellant, Wilson Christopher Rojas, Jr., was charged in a criminal complaint filed October 28, 2003, with willfully failing to register as a sex offender (Pen. Code, 290, subd. (g)(2).).^[1]On February 2, 2004, Rojas entered into a plea agreement in which he would admit the allegation. Rojas would serve no more than a year in county jail and be placed on felony probation. Rojas was advised of the consequences of his plea. Rojas was further advised of, and waived, his constitutional rights pursuant to Boykin/Tahl.^[2]Rojas was advised of his right to a preliminary hearing and the parties stipulated to a factual basis for his plea. Rojas pled no contest to the allegation.

Rojas was ordered to serve nine months in jail with credit for time served and placed on felony probation for three years. Among the terms of probation, Rojas was to obey all laws, to regularly report to his probation officer, to report his current address to his probation officer once a month, to successfully complete a mental health court program, to take all psychiatric medications as prescribed by his physician, to abstain from the use of intoxicating beverages, to submit to drug and alcohol testing, and to not associate with minors under age 18 nor to frequent places where minors congregate unless in the presence of a responsible adult approved by the probation department.

On October 8, 2004, the probation department filed notice of a request to modify Rojass probation to remove the mental health court program because there was no evidence that Rojas suffered from a persistent or chronic mental illness. On November 30, 2004, Rojas joined in the request for modification and the trial court granted the motion. A declaration letter filed by the probation department on April 21, 2005, sought to revoke Rojass probation. On June 8, 2005, the trial court granted Rojass motion to relieve his counsel of record pursuant to People v. Marsden (1970) 2 Cal.3d 118.

On June 15, 2005, the probation department filed a supplemental declaration letter seeking revocation of Rojass probation. After several continuances, the prosecutor requested the probation revocation hearing be dropped. The court reinstated Rojas on probation. Rojass probation was revoked on September 23, 2005. Rojas was reinstated on probation on November 15, 2005.^[3]

The probation department filed a new declaration letter on November 30, 2006, alleging that Rojas violated the terms of his probation by frequenting the home of a girlfriend with two young children, ages three and four. The declaration letter further alleged that Rojas was staying in the residence rather than his reported address. The probation revocation hearing was conducted on February 7, 2007. Blanca Raya testified she had known Rojas for three months and was having a relationship with him. Blanca had two young children, three and four years old.

In November 2006, Rojas came over and slept at Blancas home four or five times. There were two other children in the home, four and seven years old. Blanca married Rojas in November 2006. Blanca slept in the bed with her children. Rojas slept on the floor in the same room once and the other times in the living room.

Ryan Wegis was assigned as Rojass probation officer. Wegis explained that one term of Rojass probation was not to associate with minors under age 18 unless supervised by a responsible adult. One responsible adult approved by the probation department was Rojass ex-wife. No other adults were authorized to be with Rojas when he associated with minors. When Wegis made house calls on Rojas in November 2006, Rojas admitted living in the residence where minor children were present. Rojas also should have notified Wegis that he was staying at the residence.

Rojas testified that he still lived at his reported address. The court found Rojas violated the terms of his probation as set forth in the declaration letter. At the sentencing hearing on February 20, 2007, the trial court found Rojass performance on probation was unsatisfactory and sentenced him to prison for the midterm of two years.^[4] The court awarded custody credits of 631 days and ordered Rojas to pay the unpaid balance of the restitution fine imposed when he was placed on probation.

Rojass appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Rojas was advised he could file his own brief with this court. By letter on June 11, 2007, we invited Rojas to submit additional briefing. To date he has not done so.

DISCUSSION

We initially note that Rojas failed to appeal from the trial courts original sentencing hearing on March 3, 2004, and that he has not secured a certificate of probable cause. Any issue concerning the validity of his plea is barred by the fact that Rojas failed to appeal from the order granting probation. The order granting probation was a final order for purposes of appeal. ( 1237, subd. (a); Peoplev. Martinez (2000) 22 Cal.4th 750, 757; People v. Douglas (1999) 20 Cal.4th 85, 91.) Rojass failure to file a timely appeal after he was sentenced and placed on probation bars review of the earlier proceedings.

We further note that Rojas failed to obtain a certificate of probable cause from the trial courts initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious errors in Rojass change of plea hearing. Rojas was fully advised of the consequences of his plea and his constitutional rights. He bargained for and received probation with a commitment to county jail for less than one year.

We find no errors in the probation revocation proceedings. Rojas was given notice of the allegations prior to the hearing and was represented by counsel. Rojas violated the terms of probation both by failing to notify his probation officer of his change of address, and by associating with minors without being in the company of a responsible adult.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.^[5]

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J., Kane, J.

^[1] Unless otherwise noted, all further statutory references are to the Penal Code.

^[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^[3] Rojas pled guilty to a violation of section 647.6 on November 15, 2005 in a new criminal action, Kern County case No. BM676563A. The trial court placed Rojas on probation.

^[4] The statutory midterm sentence for a violation of section 290, subdivision (g)(2) is two years.

^[5] Rojas currently has a writ petition pending before this court in case No. F053381. In the instant appeal, we do not reach any issue raised in the writ proceeding.