P. v. Wise

P. v. Wise

Filed 9/18/08 P. v. Wise CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. BENNY WISE, Defendant and Appellant.

E045015 (Super.Ct.No. FVA028285) OPINION

APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed.

Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

A felony complaint charged defendant and appellant with one count of being a gang member in possession of a loaded firearm (Pen. Code, 12031, subds. (a)(1) & (a)(2)(C)), and one count of possession of marijuana for sale (Health & Saf. Code,  11359). It was further alleged that both counts were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(A).

Pursuant to a negotiated plea agreement, defendant admitted to being a gang member in possession of a loaded firearm in exchange for the dismissal of the remaining charges and enhancements, and a grant of probation, including the imposition of gang terms. Defendant was placed on probation.

Subsequently, probation was revoked and a contested revocation hearing was held. The court found defendant to be in violation of probation. The court then sentenced defendant to the midterm of two years and awarded him 255 days of custody credits.

Defendant filed a timely notice of appeal challenging the sentence or matters occurring after the plea.

II

STATEMENT OF FACTS

The probation revocation hearing involved the following probation terms:

A. Term 28: Stay at Least One Block Away From Any School Campus

On October 4, 2007, at about 4:30 p.m., campus security officer, Juan Escamilla, encountered defendant on the campus of Eisenhower High School in Rialto. He instructed defendant to leave; defendant refused and told Escamilla to back off. Defendant assumed a combative stance and Escamilla sprayed defendant with pepper spray. Defendant uttered a comment which Escamilla took to be a threat.

B. Term 4: Cooperate With the Probation Officer

Probation officer, Moises Plasencia, supervised defendant on probation. He opined that defendant failed to comply with this term by failing to complete several court-ordered programs.

C. Term 5: Seek Employment or Attend School

Defendant failed to comply with this probation condition term.

D. Term 15: Participate in Counseling Programs at the Discretion of the Probation Officer

Defendant failed to comply with this probation condition term.

E. Term 18: Not Associate With Known Gang Members

A police report prepared by the Rialto Police Department documented defendant as associating with a known probationer.

F. Term 26: Register as a Gang Member and Provide Proof of Such Registration

Defendant registered several months after he was required to do so. He never supplied proof of this registration to his probation officer.

III

ANALYSIS

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

We have now concluded our independent review of the record and find no arguable issues.

IV

DISPOSITION

The judgment is affirmed.

RICHLI

J.

We concur:

McKINSTER

Acting P. J.

KING

J.

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