Filed 4/13/18 P. v. Reyes CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO SAUL REYES,

Defendant and Appellant.
D072324



(Super. Ct. No. SCS279480)

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In May 2015, defendant Mario Saul Reyes pled guilty to robbery (Pen. Code,
§ 211; count 2) pursuant to a plea bargain. Reyes was granted probation and ordered to spend 270 days in custody. In November 2015, Reyes admitted a first violation of probation for failure to report after being released from custody. The court reinstated probation.
In January 2017, the court conducted an evidentiary hearing on a second probation violation for failure to remain law abiding in combination with a preliminary hearing in a new case (No. CD270320). At the conclusion of the hearing, the court found Reyes to be in violation of probation, and found probable cause in case No. CD270320 on count 1, felony violation under section 69 (battery against an officer), and on count 2, a misdemeanor violation under section 148.9, subdivision (a) (false identification).
At the sentencing hearing, Reyes was denied probation and sentenced to the midterm of three years in prison on the probation violation. In addition, he was sentenced to six months in case No. CD270320 to run concurrent with the three years imposed on the probation case.
Reyes timely appealed from his judgment of guilty plea. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel filed a brief on behalf of Reyes setting forth the facts of the case and requesting this court review the entire record. In addition, pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel set forth the following possible, but not arguable, issues to assist this court in conducting its Wende review: (1) was there sufficient grounds to revoke probation, and (2) was the denial of probation and imposition of the midterm sentence an abuse of discretion?
On this court's own motion, Reyes was given 30 days to file supplemental briefing on his own behalf. He did not file any supplemental brief. We now affirm his judgment of conviction.
FACTUAL BACKGROUND
As the factual basis for Reyes's guilty plea, he entered two different stores on the same day and walked out of the stores without paying for the merchandise. Reyes then used a screwdriver to threaten loss prevention officers to leave him alone. The screwdriver and the stolen property were recovered upon Reyes's arrest.
As noted above, Reyes admitted to violating probation by failing to report to probation as required by his probation conditions. In January 2016, Reyes entered a department store and selected a sweater jacket and left the store without paying for the item. The department store's loss prevention officers contacted Reyes outside the store and placed him under arrest. Reyes pled guilty to a misdemeanor under section 484 (petty theft).
In January 2017, Reyes was detained by a transit system security officer, J.H., at a trolley station who wanted to speak to Reyes regarding whether he had purchased a ticket for the trolley. J.H. informed Reyes he would receive a citation for an infraction for not having a trolley fare. Reyes provided J.H. with a false name of "Alberto" Reyes and a false date of birth. J.H. told his partner he would be placing Reyes in custody for false information until he was able to obtain an accurate name and complete the citation.
Reyes refused to listen to J.H.'s verbal commands to stand up and to put his hands behind his back. J.H. then forced Reyes to stand up by taking Reyes's left arm and pulling him up. Reyes pushed back with his left hand and punched J.H. on the left side of the jaw. After the punch, J.H.'s partners and another transit security officer jumped in to assist. J.H. testified that Reyes further resisted and, after a struggle, Reyes was placed face down with his stomach flat on the ground. Once in this position, Reyes would not place his hands behind his back until he was sprayed with a chemical agent.
At the outset of the probation revocation hearing, the court stated that it had read and considered probation's supplemental report, and that it's tentative decision was to deny probation and impose the recommended midterm of three years. The court imposed the midterm of three years, declaring that, "The court has selected the mid-term because of the circumstances in mitigation and aggravation balance each other out."
DISCUSSION
The Anders issue raised by appointed counsel require us to examine whether sufficient evidence supported the court's decision to revoke Reyes's probation and whether the court abused its discretion when it denied Reyes probation and imposed the midterm sentence.
A. Probation Revocation
Section 1203.2, subdivision (a) authorizes a court to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe that the person has violated any of the conditions of his or her probation. (See People v. Rodriguez (1990) 51 Cal.3d 437, 440 (Rodriguez).) " 'When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period.' " (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) The standard of proof in a probation revocation proceeding is a preponderance of the evidence. (Rodriguez, at p. 447; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) "Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation." (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419.)
Here, as the record shows, Reyes had failed to attend two mandatory probation appointments and had not remained law abiding while on probation. This evidence supports revoking his probation under the applicable preponderance of the evidence standard. (See Rodriguez, supra, 51 Cal.3d at p. 447.) Further, the record shows the court gave Reyes an opportunity when it reinstated probation the first time after Reyes failed to report to probation after being released from custody. We thus conclude there was no error.
B. Denial of Probation and Imposition of the Midterm
An order denying probation may be reversed for failure to consider the application for probation on its merits, unfair hearing procedures, receipt of an ex parte communication, or a clear abuse of discretion. (People v. Read (1990) 221 Cal.App.3d 685, 689.) Abuse of discretion can be established by a showing that the denial of probation was arbitrary and capricious. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530.) The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based on an "individualized consideration of the offense, the offender, and the public interest." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.)
Here, as the record shows, Reyes's performance on probation has been poor and his behavior has escalated in violence, as evidenced by the fact that he punched a transit system security officer while on probation. Reyes has continued to abscond probation supervision, and as the court determined in its exercise of discretion, he is not suitable to receive probation. Indeed, the trial court prefaced its sentencing decision by stating that, "The defendant has performed poorly on probation in that he has failed to remain law abiding and absconded during the probation supervision time." Nothing in the record demonstrates any abuse of discretion in denying probation.
Finally, we have reviewed the record in accordance with Wende and have not found any other reasonably arguable appellate issues for reversal on appeal. Thus, we are satisfied that Reyes's appointed counsel has fully complied with counsel's responsibilities and that no such arguable issues exist. (See Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:




O'ROURKE, J.




AARON, J.