Filed 5/13/22 P. v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed.

Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Timothy P. Smith III appeals an order revoking his post-release community supervision (PRCS) for violating the terms of his release. Smith was reinstated to PRCS subject to commitment to county jail for a period of 180 days.

FACTS AND PROCEDURAL BACKGROUND

The probation department sought to revoke Smith’s PRCS based on several alleged violations. Following an evidentiary hearing, the court found Smith had failed to obey laws and had contact with and annoyed and harassed the victim, his former girlfriend.

The testimony offered at the evidentiary hearing is well summarized in the appellant’s opening brief. We will incorporate the summary here for background information.

“According to testimony presented in the contested hearing, at approximately 1:00 p.m. on December 26, 2021, [F.N.] saw a man assaulting a woman in a Pep Boys parking lot adjacent to Imperial Avenue in El Centro. [F.N.] saw the man kick the woman twice, punch her twice, and swing a bag at her.

“El Centro Police Department (ECPD) officer Omar Mandujano arrived at the scene shortly thereafter. He identified the female victim as A.D. A.D., upset and crying, had redness and swelling on her right arm and side. A.D. told Mandujano that Smith, her former boyfriend, had visited her camp, argued with her, pursued her to the parking lot, and struck her with his fists and with a backpack that she had dropped.

“F.N. described the suspect as a black male adult wearing a dark gray jacket and dark colored shorts, carrying a white bag. ECPD officers detained a suspect near the parking lot and subsequently identified him as Smith. Smith told Mandujano that A.D. had attacked him.”

Smith filed a timely notice of appeal following the court’s order.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Smith the opportunity to file his own brief on appeal, but he has not responded.

DISCUSSION

As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal.

1. Whether the court abused its discretion in finding the evidence was sufficient to prove Smith was the assailant.

2. Whether due process guarantees required exclusion of the victim’s hearsay statements unless the prosecution made a showing of good cause, including the unavailability to testify.

3. Whether counsel’s hearsay objection preserved Smith’s right to argue on appeal that due process guarantees required the exclusion of the victim’s hearsay statements absent a showing of good cause.

We have reviewed the entire record as required by Wende and Anders. We have not identified any arguable issues for reversal on appeal. Competent counsel has represented Smith on this appeal.

DISPOSITION

The order revoking and reinstating Smith’s PRCS is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.