P. v. Moeller

Filed 1/30/09 P. v. Moeller CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Kenneth Scott Moeller appeals following his unsuccessful challenge to a charged violation of probation. Counsel has briefed no issues and asks for our review of the record of the proceedings. (People v. Wende(1979) 25 Cal.3d 436.) Moeller has not filed a supplemental brief. We have reviewed the record and affirm.

In 2005, Moeller entered a no contest plea to resisting an executive officer following a trial where a jury returned not guilty verdicts on two counts and hung on a third.^[1] In accordance with Moellers plea agreement, the felony charge was reduced to a misdemeanor, imposition of sentence was suspended, and he was placed on three years probation. (People v. West (1970) 3 Cal.3d 595.)

In 2007, a petition was filed to revoke probation for Moellers alleged failure to lead a law abiding life. A motorist testified that Moeller slammed his fist on the hood of the motorists car, causing a dent, after Moeller was weaving through stop-and-go traffic on his motorcycle. Moeller testified that the driver of the car repeatedly bumped his motorcycle from behind while they were stopped in traffic. Moeller claimed that he feared for his life when he pounded on the hood of the car and rode away. The responding police officer testified that Moeller said that as he was passing the car on his motorcycle, the driver of the car tried to push Moeller into an adjacent lane of traffic, and he hit the hood of the car in self-defense. The court determined Moellers version of events was not credible and sustained the petition. The court revoked and reinstated Moellers probation, subject to additional conditions that he serve seven days in the county jail that was stayed pending his successful completion of a minimum of 20 anger management classes, and that he pay restitution for the damage to the motorists car. The trial court stayed Moellers sentence pending appeal, and this court granted him permission to file a late notice of appeal.

Moellers notice of appeal filed June 17, 2008, challenges the courts September 2007 orders that revoked and reinstated his probation with additional conditions. At his own request, Moeller appeared without counsel at a December 2007 status hearing where the superior court granted his motion for stay of execution of sentence pending this appeal.

Moeller was represented by counsel during the probation revocation proceedings, and he received a fair hearing. Substantial evidence supports the courts finding that Moeller willfully violated probation, and the court did not abuse its discretion when it reinstated probation on modified terms. Appellate counsel advised Moeller of his right to file a supplemental brief in this court within 30 days of the opening brief, but no supplemental brief has been filed. Full review of the record reveals no issue that requires further briefing.

DISPOSITION

The orders are affirmed.

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Siggins, J.

We concur:

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Pollak, Acting P.J.

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Jenkins, J.

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^[1] The Marin County Probation Departments presentence report indicates Moellers estranged wife called police and reported that Moeller refused to leave her home. When police officers responded to the home, Moeller told them, if you fucking come in here, Ill fucking shoot you. Moeller eventually surrendered, but was extremely verbally abusive.