P. v. Kemp
Filed 6/5/08 P. v. Kemp CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL DARNELL KEMP, Defendant and Appellant. | A118944 (Solano County Super. Ct. No. FCR226661) |
DefendantEmmanuel Darnell Kemp appeals from an order revoking his probation, following a contested probation violation hearing. Counsel has asked for our independent review of the record. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf. Defendant has not done so.
BACKGROUND
On November 18, 2005, a jury found defendant guilty of felony false imprisonment (Pen. Code, 236)[1]and misdemeanor battery on a person in a dating relationship ( 243, subd. (e)(1)). Prior to sentencing, the court found that defendant was not mentally competent within the meaning of section 1368. After the court determined that defendant had been restored to competency in accordance with section 1372, a sentencing hearing was conducted on October 20, 2006. The court suspended imposition of sentence and placed defendant on four years of formal probation. The court ordered defendant to serve 365 days in the county jail but awarded him 365 days of credit for time served. The court imposed a $200 restitution fine ( 1202.4) and a $20 court security fee ( 1465.8). In addition, the court stayed imposition of a $200 probation revocation fine ( 1202.44). The court imposed a number of other probation conditions, including that he obey all laws and successfully complete both a 52-week domestic violence course and an SB-38 program,[2]which provides counseling sessions on the dangers associated with drinking and driving.
On June 18, 2007, the probation department alleged that defendant violated his probation by failing to attend an alcohol treatment program, failing to attend a domestic violence course, and failing to obey all laws. A contested probation revocation hearing was conducted on July 9, 2007.
The Probation Violation Hearing
Jenny Lakatos, a Solano County deputy probation officer, was responsible for supervising defendant while he was on probation.
While defendant informed Lakatos that he had enrolled in an SB-38 program in Sacramento, it was her belief that he moved to Fresno without completing that program. She did not, however, provide the court with any evidence that he did not complete the program. Lakatos acknowledged that defendant did not have employment as of February 2007 and that the SB-38 program required him to pay a weekly fee.
Lakatos also discussed with defendant the requirement that he attend a 52-week domestic violence program. She set up an appointment for him with the Healing in Progress program, but defendant failed to keep the appointment. It was her understanding that defendant did not complete the domestic violence program as directed. Like the SB-38 program, Healing in Progress required payment of a weekly fee, and defendant was unemployed at the time he was supposed to begin the domestic violence program.
Defendant voluntarily informed Lakatos that while he was on probation he was convicted of driving on a suspended license.
Finally, Lakatos testified that as far as she knew, defendant did not attend mental health counseling as directed when placed on probation. Defendant told her that he was too busy to attend.
At the conclusion of the hearing, the court sustained the allegations that defendant failed to obey all laws, failed to attend mental health counseling, and failed to attend the domestic violence program.
The Sentence
At the probation violation sentencing hearing held on August 6, 2007, the court found defendant not amenable to probation and imposed the upper term state prison sentence of three years, with 680 days of credit for time served. The court imposed a $200 restitution fee ( 1202.4, subd. (b)), suspended imposition of a $200 parole revocation fine ( 1202.45), and reserved judgment on the issue of victim restitution.
In support of the determination that probation was not appropriate, the court cited defendants failure to attend the domestic violence program, his failure to make any payments toward his fees and fines, his failure to attend mental health counseling, and his continued operation of a motor vehicle without a valid license.
The court also articulated its reasons for imposing the upper term. It relied upon the violent nature of the underlying convictions for false imprisonment and battery, which indicated a danger to society. In addition, the court found the victim particularly vulnerable. The court acknowledged that defendants mental illness and substance abuse might have qualified as mitigating factors, but concluded these concerns were outweighed by the aggravating circumstances, particularly in light of defendants failure to participate in any treatment programs.
Defendant filed a timely amended notice of appeal from the August 6, 2007 order revoking his probation.
DISCUSSION
We have reviewed the record on appeal and conclude there are no meritorious issues to be argued. At the July 9, 2007 hearing, defendant was represented by counsel. Substantial evidence presented at that hearing supported the trial courts decision to revoke probation. The court properly weighed and considered the relevant factors in deciding to deny probation and impose the upper term.[3] There are no legal issues that require further briefing.
DISPOSITION
The order 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.
[2] Senate Bill No. 38, amended August 11, 1977, approved by the Governor, September 16, 1977 (1977-1978 Reg. Sess.)
[3] Sentencing in this matter was conducted months after the United States Supreme Court filed its decision in Cunningham v. California (2007) 549 U.S. 270. Trial counsel never objected that any of the factors relied upon by the trial court to impose the upper term violated Cunningham. Thus, any potential argument that Cunningham was violated has been forfeited. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103, disapproved on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.)
