P. v. Banks
Filed 3/22/13 P. v. Banks CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH
ALLEN BANKS,
Defendant and Appellant.
A136638
(Solano
County Super.
Ct. Nos.
FCR272161, FCR276735, FCR289229)
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered
that the opinion filed herein on March
14, 2013, be modified as
follows:
On page 2,
under the heading DISCUSSION, the
first three sentences are deleted. The
following is to be inserted in its place:
This court has reviewed the entire
record on appeal, and the brief filed by Banks in this court on February 13, 2013. Banks argues that there is evidence that was
not before the trial court that bears on his innocence of the charged
violation. He says that city video
cameras near the scene would show that the victim's injuries were not caused by
Banks, but could have been caused by the police who he says grabbed the
victim’s arm when they tried to interview her about the incident. The victim also apparently was uncooperative
throughout the incident and accused the officers of hurting her.
Penal Code section 1203.2,
subdivision (a) permits revocation when “the court, in its judgment, has reason
to believe†a person has violated a condition of probation. Courts have held that this statutory language
incorporates a preponderance of the evidence burden of proof into revocation
proceedings. (People v. Galvan (2007) 155 Cal.App.4th 978, 981.) In other words, the court, in its discretion
need only determine that a charged violation is more likely than not true. Here, an eyewitness testified that Banks
punched the victim on the side of her head five or six times. The video from the Fairfield
bus security camera also shows Banks grabbing the victim’s arm and forcibly
directing her into the street. The
charge against Banks for his failure to obey all laws was adequately proven,
and the evidence Banks proffers in his brief would not unequivocally
demonstrate his factual innocence or show that the court abused its discretion
in revoking his probation.
Banks also argues that the victim
had his T-shirt when this incident occurred, and all he was trying to do was
get it back from her. In his brief, he
denies hitting her or otherwise using force to retrieve it. The evidence showed otherwise.
There
is no change in the judgment.
DATED: ___________________ ___________________________P.J.
Filed 3/14/13 P. v. Banks CA1/3 (unmodified version)
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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH
ALLEN BANKS,
Defendant and Appellant.
A136638
(Solano
County Super.
Ct. Nos.
FCR272161, FCR276735, FCR289229)
Joseph Allen Banks appeals from a judgment and sentence to state
prison imposed following a determination that he violated probation in three
cases for his failure to obey all laws. His
court-appointed counsel has filed a brief requesting our independent review of
the record pursuant to
v. Wende (1979)
25 Cal.3d 436, in order to determine whether there
are any arguable grounds for appeal. We
conclude there are no issues that warrant review and affirm.
BACKGROUND
At the time of his arrest on the charges
leading to his revocation of probation and sentence to prison, Banks was on
probation in three cases in Solano County as a result of
no contest pleas entered to two charges in 2010, and another in 2012. In case no. 272161, he entered a no contest
plea to a single felony count of false imprisonment in violation of Penal Code
section 236. Other charges were
dismissed. In case no. 276735, he
entered a no contest plea to a single count of possession of a controlled
substance in violation of Health and Safety Code section 11377, subdivision
(a). Again, all other charges were
dismissed. His guilty pleas and waiver
of rights in each case appear to have been knowledgeable and voluntary, and
there was a factual basis for each plea.
In each case the court suspended imposition of sentence when it ordered
Banks to formal probation.
In case no. 289229, Banks entered a no
contest plea to a single count of possession of a firearm by a person
previously convicted of a felony in violation of Penal Code section 12021,
subdivision (a)(1). Other charges were
dismissed. The plea also served as a
basis for Banks’s admission to the revocation of probation in the two previous
cases. His guilty plea and waiver of
rights appear to have been knowledgeable and voluntary, and there was a factual
basis for the plea. The court again
ordered Banks to formal probation with imposition of sentence suspended. His probation was reinstated in case nos.
272161 and 276735.
Then, on April 18, 2012, a citizen driving
along an Antioch street saw Banks punch a girl pushing a baby in a stroller
five or six times on the right side of her head. A city bus driver also saw Banks grab the
woman by the arm and force her across the street. The bus driver’s observation was also
captured on a bus security camera. Banks
was charged with violating probation in each of the three cases and, following
a contested hearing, was found to have violated his probation for his failure
to obey all laws.
The court imposed a prison sentence in
each of the three cases. In case no.
289229, the court imposed the middle term sentence of two years. In case no. 276735, the court imposed an
eight-month consecutive sentence consisting of one-third of the middle term
sentence. In case no. 272161, the court
also imposed an eight-month consecutive sentence, for a total prison term of
three years and four months. The court
properly awarded Banks presentence credits in light of his time in custody and
waiver in one of the cases, and imposed restitution and parole revocation
restitution fines.
DISCUSSION
This
court has reviewed the entire record on appeal.
His counsel advises us that Banks has been informed of his right to file
a supplemental brief. He has not done
so. There are no issues that require
further briefing.
>
The
judgment is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness,
P.J.
_________________________
Jenkins, J.
