P. v. Ellis

Filed 1/21/09 P. v. Ellis CA1/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

The trial court found defendant Reginald Edward Ellis violated probation and ordered that a prior four year suspended sentence be executed. Defendants counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We have considered a supplemental brief filed by defendant. We find no arguable issues and affirm.

BACKGROUND

In February 2007, defendant pled no contest to possession of a firearm by a felon, (Pen. Code,  12021, subd. (a)(1)),^[1]perjury ( 118), possession of a forged drivers license ( 470b), attempt to file a false instrument ( 115, subd. (a)), welfare fraud (Welf. & Inst. Code,  10980, subd. (c)(2)), insurance fraud ( 550, subd. (b)(3)), and attempted perjury ( 118, 664). In March 2007, the trial court sentenced defendant to four years in prison, execution of sentence suspended, and placed him on probation for five years. Most of the charges involved defendants use of a false identity; the court ordered defendant to use only his true name and, in particular, not to identify himself as Reggie L. Edwards.

In December 2007, the Alameda County District Attorney filed a petition to revoke defendants probation, as well as a complaint alleging that defendant had attempted to file false documents on four occasions ( 115, subd. (a)), counterfeited seals on two occasions ( 472), committed three counts of forgery ( 470, subd. (c)), and committed perjury ( 118). The court held defendant to answer on the new charges at the conclusion of the preliminary hearing; it was also agreed that nonhearsay testimony from the hearing could be used during the probation revocation hearing.

The probation revocation hearing was held in June 2008. At the conclusion of the hearing, the trial court found defendant in violation of probation. The court revoked probation and lifted suspension of the unexecuted four year prison term imposed in March 2007.

DISCUSSION

We have reviewed the record and have found no arguable appellate issues.

Defendant was represented by legal counsel throughout the proceedings and there is no indication in the record that counsel was ineffective.

The trial court found that, while on probation, defendant prepared and presented to the National Labor Relations Board (NLRB) falsified court forms purporting to show that he legally changed his name in 1990. The purpose of the forgery was to support his claim that his employer wrongfully terminated him for using a false name on his employment application. In his testimony during the revocation hearing, defendant admitted the documents were false but denied they were submitted for the purpose of misleading the NLRB investigator. The trial court specifically rejected defendants testimony, concluding that defendant committed perjury during the hearing.

Trial courts have very broad discretion in determining whether a probationer has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The material facts in a probation revocation hearing need only be proven by a preponderance of the evidence. (Id. at p. 447.) Here, the evidence fully supports the trial courts findings. It was also proper for the trial court to order that the prior four year suspended sentence be executed.

Defendants supplemental brief contends the NLRB investigation obligated him to submit the documents at issue, as evidence relevant to his claim. However, the documents were not evidence that existed prior to the NLRB claim being filed; the trial court found that the documents were prepared by defendant for the purpose of misleading the NLRB. Defendant also argues that the federal Labor Management Relations Act preempts the probation revocation proceeding in this case, apparently to the extent revocation was based on documents submitted to the NLRB. However, we are aware of no authority that, in enacting that statute, Congress intended to prevent the enforcement of state criminal laws of general application in circumstances such as those in this case. (See Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 449 [[i]n areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention  clear and manifest  ].)

There are no legal issues that require further briefing.

DISPOSITION

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] All undesignated section references are to the Penal Code.