P. v. Webber

Filed 5/25/10 P. v. Webber CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant appeals from a judgment entered after his conviction by jury trial of felony criminal threats (Pen. Code  422)[1] and one misdemeanor count of annoying telephone calls ( 653m, subd. (a)), and following the imposition of sentence upon revocation of his probation. [2] His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues (People v. Wende (1979) 25 Cal.3d 436). After review of the record, we find no arguable issues and affirm.

Defendants original conviction of criminal threats was based upon conduct (detailed in our prior opinion confirming his conviction) threatening the victim by stating during a phone call,   Im going to fucking kill you . . . . I know where you live. I know where your kids are. Im going to kill your family. Im going to follow you.  . . . []  I talked to your daughter. I know where you live. Im coming to your house.   (People v. Webber, supra, at pp. 2-3.)

Following defendants conviction, the imposition of sentence was suspended and he was placed on five years felony probation (on December 15, 2006). Among the conditions of probation were that defendant obey all laws, and that he refrain from consuming alcohol and illegal drugs. Defendants probation was violated on April 8, 2009, due to a dirty test; the next day, the court reinstated defendants probation. On July 2, 2009, the probation department sought to revoke defendants probation once again, alleging that he committed acts of domestic violence, made a criminal threat, and used alcohol and illegal drugs.

The evidence adduced at the contested probation revocation hearing demonstrated that defendant threatened one Jessica Zeidler, with whom he had a romantic relationship. Ms. Zeidler had been the victim of several instances of domestic violence at the hands of defendant in the past. In 2009, he threatened her several times, once stating,  Im going to sock you if you dont shut up  and once stating that she had better be careful because one day Im going to find myselfmy family is going to find myself watching me on the news like one of those murder cases where the husband comes home and kills his wife and his kid and then kills himself because the woman just wouldnt shut up. And he also said stuff like, I ought to kill you. . .  These threats and others made Ms. Zeidler afraid for her life and for that of her son. After the presentation of defense evidence contradicting Ms. Zeidler, the court found her to be fairly credible and found at least one defense witness not to be credible. The court found that defendant had violated his probation by not abstaining from alcohol and by committing a battery upon and threatening Ms. Zeidler, revoked probation, and sentenced defendant to the aggravated term of three years in state prison. In imposing the aggravated term, the court relied upon the seriousness of the underlying threat conviction and the similarity of defendants conduct toward Ms. Zeidler, which formed the basis of the revocation of probation. The court also noted he has the prior convictions that were not previously imposed as far as denying probation. This timely appeal followed.

There was no error in the conduct of the probation revocation hearing or in the finding that defendant violated his probation, or in his sentencing. There are no meritorious issues to be argued on appeal.

The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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[1] All further section references are to the Penal Code.

[2] This conviction was affirmed in People v. Webber (June 30, 2008, A116500) [nonpub. opn.].