P. v. Mount

Filed 11/19/09 P. v. Mount CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

While on probation from a 2008 conviction for felony petty theft with a prior (Pen. Code,  666),[1] appellant was stopped and arrested by the Napa police for being in possession of a burglary tool. The District Attorney moved to have appellants probation revoked, and the trial court so ordered. Citing People v. Wende (1979) 25 Cal.3d 436, appellant appeals and asks this court to examine the record and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the order revoking appellants probation.

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 2008, appellant pled guilty to one count of felony petty theft with a prior. At a sentencing hearing the following month, the trial court suspended imposition of sentence and, instead, placed appellant on formal probation for three years subject to the conditions that he serve 90 days in county jail and, thereafter, obey all laws.

On January 18, 2009,[2] Napa Police Officer Adam Davis was on patrol in the City of Napa at around 12:25 a.m. At an intersection there, he saw appellantwho had just been released from custody three days beforeand a female companion walking some 30 or 40 feet ahead of his vehicle. Appellant looked back, saw that vehicle, and then made a motion towards the ground as if he were throwing something down. The officers view of appellant from the waist down was blocked by shrubs but, after seeing the motion, Davis heard a metallic clanking sound on the sidewalk. Davis stopped his patrol car, approached appellant and his companion, and asked the former what he had dropped on the ground. Appellant denied dropping anything.

Davis thereupon searched the area and found a screwdriver with a head that appeared to have been shaved flat in the shape of a key and, also, a white rag. Although the outside temperature at that time of day and season of the year was cold, the screwdriver was warm to the touch.

Davis was, he testified, familiar with burglary tools and, although he had never seen a screwdriver altered as this one was, he had seen similar devices; over a defense objection, he testified that, in his opinion, the altered screwdriver was designed to either pick locks or punch an ignition on a vehicle. When appellant was stopped by Davis, he was walking on a street (Patchett Street in Napa) within 10 feet of several parked vehicles.

Davis conceded that he never saw the altered screwdriver in appellants possession nor was it thereafter tested for fingerprints. However, appellants female companion on the night in question, Angela Haley, told Davis that she had seen appellant make a movement to throw something on the ground and there was a clanging noise when he did so.

The testimony just described was presented at an April 1 hearing to consider a February 26 prosecution petition to revoke appellants probation, a petition charging a violation of section 466, possession of a burglar tool. ( 466.) No testimony was presented at the hearing by appellant. At the conclusion of the testimony of Officer Davis, the court found appellant to be in violation of his probation.

On April 29, appellants probation was revoked and then reinstated on the original terms, except that he was ordered to serve 150 days in county jail (with credit for 144 days already served, later amended to consist of 146 days), and ordered to comply with several new drug-related conditions.

Appellant filed a timely notice of appeal.

III. DISCUSSION

At the conclusion of the hearing, which included only the testimony from Officer Davis and arguments by counsel, the trial court held that the prosecution had proved by a preponderance of the evidence that [appellant] has violated his probation as alleged in the petition. The totality of the circumstances is substantial. That Mr. Mount had a burglary tool in his possession with the intent to commit some criminal act. The court specifically cited the shape of the altered screwdriver, its warmth to the touch, and the fact that both Officer Davis and appellants companion on the night in question had heard a clanking sound at the time appellant moved his hand toward the ground. The court concluded that substantial evidence showed a violation of section 466.

We agree with the trial court regarding the substantiality of the evidence presented and with its conclusion that appellants probation should be revoked. We also find no evidentiary[3] or procedural issues deserving of further briefing.

IV. DISPOSITION

The order revoking appellants probation is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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[1] All further statutory references are to the Penal Code unless otherwise noted.

[2] All further dates noted are in 2009.

[3] The only significant evidentiary issue at the probation revocation hearing was the courts ruling allowing Officer Davis to give expert testimony as to whether, in his opinion, the altered screwdriver recovered by him was, in fact, likely to be a burglary tool. ( 466.) Defense counsel voir dired Davis on this issue, and the latter testified concerning his training related to this subject, the information he had received from other officers, including detectives, and his two other exposures to similar-appearing tools. The trial courts ruling was clearly correct.