P.v . Foster

Filed 2/22/07  P.v . Foster CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            Defendant Richard Vaughn Foster appeals an order revoking his probation following a contested probation revocation hearing.  (Pen. Code, §  1237, subd. (b).)^[1]  Defendant's counsel advises this court that her examination of the record reveals no arguable issues.  (Anders v. California (1967) 386  U.S. 738; People v. Wende (1979) 25  Cal.3d 436.)  Counsel has advised her client in writing that a Wende brief was filed and that defendant had the right to personally file a supplemental brief in this case within 30 days.  No such brief was filed.  We agree that the record reveals no arguable issues and affirm.

Background

            In January 2005, defendant pled guilty to possession of cocaine.  The court imposed the upper five-year term, suspended execution of sentence and placed defendant on three years probation with terms and conditions.

            In December 2005, defendant admitted violating his probation and the court reinstated probation with the added condition that defendant serve 90 days in county jail.

            In March 2006, the prosecutor moved to revoke defendant's probation alleging that defendant violated the conditions of his probation.  At a contested probation revocation hearing, evidence established that, on March 14, police observed defendant accept currency from Christopher Shaw in exchange for a plastic baggie containing suspected rock cocaine.  Thereafter Shaw was arrested and police recovered suspected base rock cocaine from him.  It was later found to weigh 0.14 grams and tested positive for base cocaine. Police then approached defendant, who dropped a plastic baggie containing suspected rock cocaine.  The rocks in this baggie were later found to weigh 1.86 grams and tested positive for base cocaine.  The sum of $55, $19 of which were in $1  denominations, was also recovered from defendant.  A police inspector opined that defendant possessed the cocaine for sale, although he conceded that the amount possessed could be possessed for personal use.  The thrust of the defense, including testimony by defendant, was that the baggie found on the ground in front of defendant did not belong to him.

            On June 6, 2006, at the conclusion of the contested hearing, the court found defendant to be in violation of his probation and ordered probation revoked, and imposed the five-year prison term.

            Our review of the record reveals that proper procedures were followed by the prosecutor in seeking revocation of defendant's probation and setting the matter for a contested probation revocation hearing.  Defendant appeared at the revocation hearing and at all relevant times was adequately represented by counsel.  Substantial evidence supports the court's finding that defendant violated the conditions of his probation and, therefore, probation was properly revoked.  We conclude there are no arguable issues.

Disposition

            The order is affirmed.

                                                                                    SIMONS, J.

We concur.

JONES, P. J.

MILLER, J.^*

(A114394)

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1]  No notice of appeal was filed regarding defendant's original conviction of possession of cocaine for sale (Health & Saf. Code, §  11351.5) and no certificate of probable cause was sought or obtained.

^*  Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.