P. v. Andrade
Filed 7/25/06 P. v. Andrade CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. RENE CORREA ANDRADE, Defendant and Appellant. | H029036 (Monterey County Super. Ct. Nos. SS010149, SS020090) |
Defendant appeals from the trial court's orders revoking his probation in Monterey County action numbers SS010149 and SS020090. In his opening brief, defendant argues that his counsel was ineffective for permitting him to admit a probation violation for failing to report to his probation officer immediately upon his release from county jail, when in fact he did not willfully violate his probation, because his failure to report was due to his involuntary deportation. In a supplemental brief, he also argues that the court lacked subject matter jurisdiction to revoke his probation because the violation of a probation condition was not willful, and that the court abused its discretion by revoking his probation for a non-willful violation of a probation condition. Defendant's first two grounds of appeal are not cognizable on appeal without a certificate of probable cause; we therefore decline to address them. Although his claim of post-plea abuse of discretion is cognizable on direct appeal, we reject it on the merits and affirm the judgment.[1]
STATEMENT OF THE CASE AND FACTS[2]
In case number SS010149, on August 1, 2001, pursuant to a negotiated disposition, defendant pleaded guilty to an assault by means of force likely to produce great bodily injury. (Pen. Code § 245, subd. (a)(1).)[3] According to the probation department, defendant and three confederates ran down a stairway and attempted to get into a car, just as a police officer arrived to investigate a call of a fight in progress. While the officer talked to defendant and the others, a man covered in blood staggered towards them. During a later interview, the victim said at least three people had attacked him, and that defendant had hit him over the head with a beer bottle.
On August 29, 2001, the court sentenced defendant to state prison for four years but suspended execution of sentence for three years, on the conditions, among others, that he serve 300 days in the county jail and report to his probation officer immediately upon his release from jail. On February 27, 2002, defendant's probation was revoked and reinstated on the same terms and conditions.
On June 12, 2002, in case number SS020090, defendant pleaded guilty to possession of cocaine. (Health & Saf. Code § 11350.) According to the probation department, defendant and several friends were gathered in a garage when the police arrived to interrogate one of the men in the group. Defendant ran from the police, and dropped a baggy containing .35 net grams of cocaine. On July 17, 2002, the court granted defendant three years' formal probation on the conditions, among others, that he serve 365 days in the county jail, report to the probation officer immediately upon his release from custody, and register as a narcotics offender. (Health & Saf. Code § 11590.)
On February 25, 2003, the probation department filed a petition alleging that â€
