P. v. Ellis

Filed 1/21/09 P. v. Ellis CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:*

Tromaine Ellis appeals from the judgment entered following revocation of probation previously granted after his plea of no contest to corporal injury to a spouse (Pen. Code, 273.5, subd. (a)). The trial court suspended imposition of sentence and placed appellant on five years formal probation, on the conditions, among others, that he attend 52 domestic violence classes, one a week for a year, obey all laws, pay a restitution fine and victim restitution, cooperate with his probation officer and keep the probation officer apprised of his residence.

Subsequently, at a probation violation hearing, the trial court found that appellant had violated probation and sentenced him to the upper term of four years. The probation violation was based upon the following facts.

Appellant was married to Autumn Edwards (Edwards) and moved in with her in January 2008. On February 6, 2008, Edwards, appearing upset, contacted April Smith (Smith), appellants probation officer, and told her that the previous day appellant assaulted her, refused her repeated requests that he leave, threw her to the floor, pushed her head against the floor and pressed his fingers into her temples. She gave Smith a written statement to that effect. Edwards asked Smith for assistance in obtaining a restraining order and gave her an application form that had been filled out and that she intended to file.

At trial, Edwards recanted her written statement and statements to Smith and testified that she lied about the incident and that it did not happen. She claimed to have lied to retaliate against appellant because she believed he was cheating on her. Edwards did not file the application for restraining order and testified she was not afraid of appellant. But Edwards admitted that she told the district attorney a few days before the probation violation hearing that because appellant gave her money, she would not be much help at the hearing.

Smith had been appellants probation officer since September 2007, and he had not reported regularly to her and missed most appointments. As a condition of probation, appellant was to keep Smith advised of his living arrangements. Yet he gave Smith an address that was different than two addresses he gave police officers ticketing him in February 2008 for expired car registration and lack of proof of insurance. Appellant claimed that when police stopped him, he was driving Edwardss car and did not know if she maintained insurance on the vehicle.

As a further condition of probation, appellant was to enroll in domestic violence counseling within 30 days, but Smith did not receive the enrollment information until much later. Once appellant did enroll, he did not regularly attend, and, in March 2008, he was dismissed. He later reenrolled, but never provided Smith with a certificate of completion.

Another probation condition was that appellant make monthly payments on his restitution order requiring payment of $5,529. He had made no such payments as of the time of the probation violation hearing.

Appellant claimed he was late enrolling and paying restitution because of economic problems. He testified that he was terminated from the domestic violence program because he had difficulty getting there on time after attending church. When he reenrolled, he regularly attended classes. He also denied any altercation with Edwards on February 6, 2008.

We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an Opening Brief in which no issues were raised.

On November 6, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No supplemental brief has been filed.

We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

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* BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.