P. v. Crown

Filed 2/17/09 P. v. Crown CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________________

INTRODUCTION

Appellant, who was in the deferred entry of judgment program in a drug possession case and on probation for corporal injury in another case, was found to be in violation of the terms of his probation. The trial court terminated the deferred entry of judgment program, revoked probation, and sentenced appellant a total of two years and eight months in prison in the two cases. Appellant appeals from the judgment. Because he raises no arguable issues, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2006, appellant pled guilty to possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)) after waiving his rights. The trial court placed him in the deferred entry of judgment program for 36 months on various terms and conditions (Pen. Code,  1000 et seq.),[1]including completing a drug program.

In December 2006, appellant struck his girlfriend, Jaime Olivas. They have four children together. A few days later, he went to Olivass parents home, where she was residing. Appellant became combative when Olivass father would not let him speak with her. As a result, Olivas obtained a restraining order.

Appellant was charged with corporal injury to another ( 273.5, subd. (a)), stalking, and making criminal threats. It was further alleged the criminal threat was a serious felony because appellant had used a deadly and dangerous weapon. Appellant waived his rights and pled no contest to the corporal injury charge based upon a negotiated plea agreement. The trial court suspended imposition of sentence and placed appellant on formal probation for three years under various terms and conditions. The court reinstated the deferred entry of judgment program in the drug case.

In August 2007, the trial court revoked probation in the corporal injury case because appellant had violated the protective order by harassing Olivas and her father on the telephone and in person. The court admonished appellant that he was to have no contact with the persons named in the protective order, and then reinstated probation on the same terms and conditions.

In February 2008, a probation officers report indicated appellant appeared to be in violation of probation because, among other things, he was arrested and charged for taking his own vehicle from a repair facility without paying for the repairs. The trial court revoked probation in the corporal injury case and terminated the deferred entry of judgment program in the drug case.

In May 2008, the trial court held a hearing to determine if probation should remain revoked because of the new allegations, and decide whether he had violated the terms of Olivass protective order. Olivas testified that on February 19, 2008, appellant called her on her cell phone. She answered it because appellant had used a restricted number and Olivas could not tell who was calling her. Appellant yelled and cursed at her. He said Olivas was going to pay for it or get it. She had recorded this call on her cell phone, which was played for the court. Appellant also called her when he got arrested on the new offense, as well as many other times in early 2008. He would either hang up or make the same remarks he had on February 19. In addition, appellant would call Olivas at her parents house, make funny noises, and then hang up. Appellant sent pictures to Olivass cell phone, including one with appellant wearing a Chuckie mask the doll from the movies which scared her.

In his defense, appellant called Jessica Olivares, his new girlfriend, to testify. Olivares testified she and appellant shared a cell phone. In February 2008, they received numerous text messages from Olivas with profanity. One message was sent with a nude photo of Olivas, and stated, This is something you can never have again. According to Olivares, Olivas also left numerous voicemails on their cell phone during the same time frame, including one that said, I hate you, you stupid mother fucker. Watch whats going to happen. You know my Dads from San Fer, (referring to street gangs), and Im going to get all his friends after you to kick your ass so you know what it feels like. Olivares said she was also present on three occasions when Olivas called and appellant answered the phone. After appellant was incarcerated, Olivas appeared at appellants residence (his mothers house) several times, sometimes to drop off their children.

Appellants mother, Maria Crown, also testified that in February 2008 Olivas called her home and left numerous voice mail messages for appellant, including one asking for help because her vehicle had run out of gas, and another saying she was going to get San Fernando gang members to fuck him good. Olivas would also call asking Maria to babysit the four children. Maria would remind Olivas of the restraining order, but Olivas said it was okay for appellant to see the children.

Appellant testified Olivas could not have made the recording of his call on her cell phone because he believed a cell phone could not perform such a function. Appellant said he never contacted Olivas. He admitted it was his voice on the recording played in the courtroom, but said it was a call from 2006. The only reason he went to Olivass parents home was to see his children.

The trial court found Olivas be credible and that appellant had violated his probation by contacting Olivas and threatening her. The court pointed out all the events had transpired after the court had admonished appellant in August 2007 about the consequences of violating the protective order. Defendant was sentenced on the two older cases, and the new theft case was dismissed.

This appeal followed.

DISCUSSION

We appointed appellate counsel, who filed a brief stating he could not find any arguable issues for appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to appellant inviting him to submit a letter or brief raising any issues he wished for us to consider. He filed a letter asserting, among other things, that (1) the search of his residence preceding the drug charge was invalid and the drugs were planted by police to cover-up an illegal search; (2) there was insufficient evidence he contacted Olivas and violated the protective order; and (3) the prosecutor from the District Attorneys office handling the parole revocation hearing had a conflict of interest and should have been disqualified.

We have reviewed the record, paying particular attention to appellants claims. We find no arguable issues for appeal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, Acting P. J.

WE CONCUR:

FLIER, J.

BIGELOW, J.

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[1] Further code references are to the Penal Code.