P. v. Guanill
Filed 3/9/06 P. v. Guanill CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO
| THE PEOPLE, Plaintiff and Respondent, v. FERNANDO GUANILL, Defendant and Appellant. | A108585 (San Francisco County Super. Ct. Nos. SC190401, SC193455) |
I. INTRODUCTION
Fernando Guanill appeals from the trial court's revocation of his probation and imposition of a prison sentence. Appellant contends: (1) there is insufficient evidence to support the finding that he violated the terms of his probation; (2) he did not receive prior notice of the grounds upon which the court relied in revoking probation; (3) the court abused its discretion in imposing a prison sentence rather than reinstating probation; and (4) the court erred in imposing consecutive sentences for the underlying offenses. Finding no reversible error, we will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Case No. 190401
On September 16, 2003, an information was filed in San Francisco Superior Court charging appellant with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1);[1] count 1), with personal infliction of great bodily injury (§ 12022.7, subd. (a)), battery resulting in serious bodily injury (§ 243, subd. (d); count 2), making terrorist threats (§ 422; count 3), and misdemeanor battery (§ 242; count 4). The information also alleged appellant had a prior serious felony strike conviction for assault with a deadly weapon (§§ 667, 1170.12) and that he served a prior prison term (§ 667.5).
These charges stemmed from incidents involving brothers Marcus and Peter Cortez. On August 11, 2003, appellant became upset after Peter Cortez, who worked as a security guard at a market on Crescent Street in San Francisco, ordered appellant to leave the store at around 9:30 p.m. The brothers and appellant exchanged angry words before appellant left. As Marcus Cortez was walking home from the store a short time later, appellant emerged from the dark and hit him in the head several times with a battery, knocked him down, and kicked him repeatedly. Appellant told Marcus he had a knife that he would use if Marcus got up. After appellant walked away, Marcus returned to the store and was taken to San Francisco General Hospital. He was treated and spent three days in intensive care.
On August 14, 2003, Peter Cortez was walking home from work when appellant jumped out of a doorway and said he was going to kill him. Peter recognized appellant and told him he was under citizen's arrest. When appellant continued to come at him, Peter sprayed him in the face with mace and then warded him off with a flashlight until the police arrived.
On January 2, 2004, pursuant to a plea bargain, appellant pleaded guilty to count 3, making terrorist threats, and the remaining charges were dismissed. On February 2, 2004, the court suspended imposition of sentence and placed appellant on probation for a period of three years subject to the terms, among others, that he serve 142 days in county jail with credit for time served; that he stay away from 399 Crescent Street and not threaten or contact victims Marcus and Peter Cortez; that he pay restitution to the victims; and that he obey all laws.
B. Case No. 193455
On January 21, 2004, a complaint was filed in San Francisco Superior Court charging appellant with one count of possessing a controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a)). Apparently, on January 18, 2004, appellant was in possession of cocaine at 2126 Mission Street in San Francisco.[2]
On February 2, 2004, pursuant to a plea bargain, appellant pleaded guilty to possessing a controlled substance. On the same day, the court suspended imposition of sentence and placed appellant on probation for a period of three years subject to the terms, among others, that he serve 16 days in jail; that he complete 200 hours of community service; that he participate in drug testing or counseling as directed by his probation officer; that he stay away from the central Mission neighborhood bordered by 14th and 18th Streets and South Van Ness and Valencia Streets; and that he obey all laws.
C. Revocation of Probation
On May 3, 2004,[3] the district attorney filed a motion to revoke appellant's probation in case number 190401 based upon a police report indicating that appellant had violated a stay away order.[4] Appellant's probation was summarily revoked on May 5. On May 10, the district attorney withdrew the motion to revoke probation, and the court reinstated probation on the original conditions with an admonishment that appellant comply with the stay away order.
On July 22, the Adult Probation Department (APD) notified appellant that it would seek revocation of his probation in both cases because of his failure to comply with an unspecified stay away order imposed as a condition of his probation. The motion to revoke incorporated an attached police report (number 040780046) indicating that on July 8, appellant had gone to the reporting victim's home, had rung the doorbell, and had left papers from Google queries â€
