P. v. Holton

Filed 8/30/07 P. v. Holton CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant and appellant Stanley Holton appeals from a final judgment revoking probation and imposing sentence following a contested revocation hearing. Appellants counsel has filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.

Facts & Procedural Background

An Information filed on July 17, 2003, accused appellant of the crime of second degree robbery, in violation of Penal Code section 212.5, subdivision (c).[1] The information also alleged use of a deadly weapon (knife), pursuant to section 12022, subdivision (b)(1), and personal use of a knife, pursuant to section 1192.7, subdivision (c)(23). On December 19, 2003, appellant entered a plea of guilty and admitted the allegations. On January 9, 2004, the trial court suspended imposition of sentence and placed appellant on supervised probation for a period of three years. As conditions of probation, appellant was required to serve one year in county jail, continue his R.S.V.P. (Resolve to Stop Violence) program while in county jail, and complete an additional year in an outpatient or residential drug program upon release.

On March 29, 2006, the district attorney filed a motion to revoke probation after appellant was apprehended stealing three pairs of earrings from Macys on Union Square. On May 5, 2006, appellant admitted a violation of probation. The court reinstated probation on condition he permanently waive 449 custody credits, serve 90 days in county jail, and stay away from the Macys Department store. The trial court extended probation to February 15, 2007.

On June 19, 2006, the district attorney filed another motion to revoke probation. The motion was based on a San Francisco Police Department incident report stating appellant had been arrested for burglary of a bakery on Stockton Street. At a hearing on August 28, 2006, Quock Min Wong testified he called the police on June 15, 2006, after he saw an African-American male push through the glass door of the Mee Mee Bakery across the street from his apartment at around 3:00 a.m. Wong said the man was wearing a white tee shirt with long sleeves, but he could not see the mans face. Wong saw the man come back out of the bakery and head towards Broadway. Wong did not see or hear glass breaking; he saw the man go through the door and emerge a couple of minutes later with nothing in his hands. The police came about five minutes after Wong called. The police took Wong to Broadway where he identified appellant by his clothes as the man who entered the bakery.

San Francisco Police Officer Sam Yuen testified he responded to the bakery on Stockton Street. Yuen stated he saw appellant near the bakery and appellant matched the description broadcast from headquarters. Yuen detained appellant when he turned onto Broadway. Yuen stated he noticed appellant smelled strongly of bakery sweet, [b]ecause as I was going to place the handcuff on him . . . I was standing directly behind him and I smell this really sweet scent of bakery, you know, . . . right after you bake cookies, a really sweet smell. Subsequently, Yuen noticed appellant had dried blood on his hand and found glass embedded in appellants shoe. Also, Officer Yuen transported Wong from the bakery to the corner of Broadway where the street was well lit, shined the spotlight of the police vehicle on appellant, and Wong identified appellant as the man who entered the bakery. Upon further examination by the court, Officer Yuen stated the glass in the door to the bakery was still intact but all shattered so it made a flap in the door. Based on this evidence the court stated: On the issue of the willful violation of probation, there is no doubt in the Courts mind that the defendant entered the bakery, took steps to, you know, move this flap of glass at least. If hes not the original breaker of it, he certainly went through a door that was somewhat intact and left after a short time, and hes the one that was identified correctly by Mr. Wong.

At a sentencing hearing on September 18, 2006, the trial court revoked appellants probation and imposed the mid-term sentence of three years on the underlying robbery conviction because the admissible circumstances in aggravation balance the circumstances in mitigation. The trial courts oral pronouncement of judgment is accurately reflected in the Abstract of Judgment filed on September 19, 2006. Appellant filed a timely notice of appeal on November 13, 2006.

Discussion

As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellants counsel has filed a Wende brief raising no arguable issue, counsel informed appellant of his right to file a supplemental brief, and appellant did not file such a brief. We have also independently reviewed the entire record for potential error.

Trial courts have very broad discretion in determining whether a probationer has violated probation (People v. Rodriguez (1990) 51 Cal.3d 437, 443), and an appellate court should interfere with the exercise of such discretion only in a very extreme case. (Ibid. [citation omitted].) In addition, the facts in a probation revocation hearing are provable by a preponderance of the evidence standard. (Id. at pp. 441-442.) Here, the evidence presented at the revocation hearing amply supports the trial courts finding appellant burglarized the bakery, and we find no abuse of discretion in the trial courts subsequent decision to revoke probation. (People v. Self (1991) 233 Cal.App.3d 414, 417 [probation revocation reviewed for abuse of discretion].)

Similarly, the trial courts decision to impose the midterm sentence of three years after concluding that circumstances in mitigation balanced circumstances in aggravation is neither irrational or arbitrary (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977), and therefore must be affirmed on appeal. (Id. at pp. 977-978 [absent showing that a trial courts sentencing decision is irrational or arbitrary, the court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review].) Moreover, imposition of the mid-term sentence raises no concerns under Cunningham v. California (2007) 127 S.Ct. 856, 860 [imposition of upper term based on judicial factfinding denied petitioner his right to a jury trial].) In sum, our independent review of the record reveals no error.

DISPOSITION

The judgment is affirmed.

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Horner, J.*

We concur:

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McGuiness, P. J.

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Pollak, J.

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

[1] Further statutory references are to the Penal Code unless otherwise noted.