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P. v. Gilbert CA1/4

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P. v. Gilbert CA1/4
By
12:10:2018

Filed 9/21/18 P. v. Gilbert CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS VIRGIL GILBERT,

Defendant and Appellant.

A153920

(Lake County

Super. Ct. No. CR943060)

Defendant Dennis Virgil Gilbert appeals a judgment entered upon his plea of no contest to possessing an illegal weapon. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.

Defendant was charged with one count of felony possession of an illegal weapon, a billy club (Pen. Code,[1] § 22210; count one) and one count of misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count two). The complaint alleged defendant had suffered four prior serious or violent felony “strike” convictions (§§ 667, subd. (d) & 1170.12, subd. (b)) and had served five prior prison terms (§ 667.5, subd. (b)).

According to the probation report, a police officer stopped defendant while he was driving, and saw a wooden club in the vehicle, in plain sight. Defendant did not have a driver’s license and the vehicle was not registered to him. Defendant told the officer that he had just bought the vehicle from an unknown person and that the club did not belong to him.

Defendant pled no contest count one, possession of the weapon, and admitted the five prior prison terms. The trial court dismissed count two and the strike allegations. On July 18, 2016, the trial court suspended imposition of sentence, imposed fines and fees, and placed defendant on probation for five years. Among the conditions of probation, defendant was required to participate in an approved counseling program and to submit forms reporting his residence and employment to his probation officer each month. Defendant acknowledged that he understood and accepted the probation conditions.

The probation department reported in June 2017 that defendant had violated his probation by leaving his residential counseling program and failing to submit the monthly reports. The evidence showed defendant started the treatment program in August 2016, and left in September 2016, without completing it. Defendant telephoned his probation officer on August 29, and she sent report forms to him at the treatment program’s address. He left several messages on September 14 to tell the probation officer he had not received the forms, and she sent the forms again. Defendant never submitted the reports. He testified he did not receive any forms before he left the treatment program.

Defendant testified he left the program because he was “having problems” with another resident, and because his wife had cancer and he needed to speak with her doctor. He was in a 60-day “blackout period,” and he was not authorized to leave the program. He called his probation officer and left a message telling her he was no longer in the program. Defendant did not contact the probation department at any time after leaving the treatment program; he testified this was because he was busy working and caring for his wife.

The trial court found defendant in violation of the condition requiring him to report his residence and employment to the probation department. At sentencing, the court noted defendant’s extensive criminal record and poor performance on prior grants of parole and probation; recognized defendant was statutorily ineligible for probation except in an unusual case (§ 1203, subd. (e)(4)); and denied further probation. The court sentenced defendant to the upper term of three years in prison (§§ 22210 & 1170, subd. (h)) and imposed additional terms of one year for each of the five prior prison sentences (§ 667.5, subd. (b)), for a total sentence of eight years. The court ordered defendant to pay the previously imposed fines and fees and granted presentence credits.

There are no meritorious issues to be argued.

DISPOSITION

The judgment is affirmed.

_________________________

Tucher, J.

We concur:

_________________________

Streeter, Acting P.J.

_________________________

Reardon, J.


[1] All undesignated statutory references are to the Penal Code.





Description Defendant Dennis Virgil Gilbert appeals a judgment entered upon his plea of no contest to possessing an illegal weapon. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.
Defendant was charged with one count of felony possession of an illegal weapon, a billy club (Pen. Code, § 22210; count one) and one count of misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count two). The complaint alleged defendant had suffered four prior serious or violent felony “strike” convictions (§§ 667, subd. (d) & 1170.12, subd. (b)) and had served five prior prison terms (§ 667.5, subd. (b)).
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