P. v. Smith
Filed 5/13/13 P. v. Smith CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 PEOPLE,
Plaintiff and Respondent,
v.
VICTOR EUGENE SMITH,
Defendant and Appellant.
B239352
(Los Angeles
County
Super. Ct.
No. NA068215)
THE COURT:
Appellant
Victor Eugene Smith appeals from an order revoking his probation, following an
admission of violation, and executing a previously suspended prison term.
BACKGROUND
The following facts regarding
the charged incidents are taken from the probation report. On November
25, 2005, Los Angeles Police Department officers responded to a
residence on West 210th Street
following the report of a man with a gun.
Officers heard a woman scream “Help†from inside the house. The front door burst open and a female ran
outside, closely followed by appellant.
The female pointed to appellant and stated, “That’s him, please help
me.†Appellant was taken into
custody. The female victim reported that
over the course of the previous four weeks, appellant had assaulted her on two
occasions, threatened her with a gun, prevented her from leaving the house to
go to work, and prevented her from calling the police. The first assault in which appellant struck
the victim with a closed fist resulted in the victim requiring 18 stitches to
her mouth. The victim sustained bruising
as a result of the second assault in which appellant struck her
officers following his arrest.
On October 25, 2006, appellant pled no
contest to corporal injury on a cohabitant and admitted a great bodily injury
enhancement (Pen. Code, §§ 273.5, subd. (a), 12022.7 (count 1));
injury on a cohabitant (§ 273.5, subd. (a) (count 2)); making criminal
threats (§ 422 (count 3)); dissuading a witness by force or threat (§ 136.1,
subd. (b)(1) (count 4)); false imprisonment by violence (§ 236 (count 5)); and
false identification to a police officer (§ 148.9, subd. (a) (count 6)). Appellant also admitted a prior conviction
for battery upon a cohabitant (§ 243,
subd. (e)(1)). The trial court sentenced
appellant to an aggregate state prison term of 11 years 10 months, but
suspended execution of sentence and placed appellant on formal probation for
five years under various terms and conditions.
In December
2009, the probation department filed a petition for arraignment on a probation
violation. Probation was revoked when
appellant failed to appear at the hearing on February 8, 2010.
On March 23, 2010,
the court reinstated probation and extended the period of probation by one year
to December 7, 2012. Appellant failed to appear at 8:30 a.m. on December 6, 2010, for a progress report hearing. The court summarily revoked probation and
issued a no-bail bench warrant.
Appellant was taken into custody when he showed up at 9:15 a.m.
At a probation violation hearing on December 8, 2010, appellant admitted to an unspecified
violation. Probation was revoked and
then reinstated with a new requirement that appellant provide 60 days of
community service to Caltrans. The court
ordered appellant back on June 8, 2011,
and stated, “You will show me you have done 60 days of Caltrans. If you don’t, you will be remanded, and I’ll
give you the 11 years, 10 months.†On June 8, 2011, appellant’s probation
was revoked when he provided proof that he had completed only 23 days of
Caltrans service. At a hearing on September 12, 2011, appellant waived
his right to a revocation hearing and admitted to a violation of
probation. The court revoked probation
and imposed the previously suspended prison term of 11 years 10 months. Appellant filed a timely
DISCUSSION
We appointed counsel to
represent appellant on appeal. After
examining the record, counsel filed an opening brief pursuant to
raising no issues, but requesting a review of the record. We gave notice to appellant that his
appointed counsel had not found any arguable issues, and that he had 30 days
within which to submit by brief or letter any grounds of appeal, contentions,
or arguments he wanted this court to consider.
Appellant
submitted two handwritten briefs in which he contends that: (1) he was in compliance on December 6, 2010,
and should not have been found in violation of probation; (2) he was not
credited with all time served; (3) the modifications of his probation on March
23, 2010, and on December 8, 2010, were “illegalâ€; (4) the requirement to
provide community service to Caltrans was unauthorized; (5) the court did not
have jurisdiction to extend probation for more than the permitted maximum of
five years; (6) the court found him in violation of his probation because he
was late for a hearing; (7) the trial court’s discretion to revoke his
probation was limited and was improperly based on “information know[n] to the
court prior to sentencingâ€; (8) the sentence constituted cruel and unusual
punishment.
Section 1203.2,
subdivision (a), authorizes the court to revoke probation after proper notice
and a hearing “if the interests of justice so require and the court, in its
judgment, has reason to believe from the report of the probation or parole
officer or otherwise that the person has violated any of the conditions of his
or her
supervision . . . .†Once a court had
determined that a violation of probation has occurred, it must “decide whether
under all of the circumstances the violation of probation warrants revocation.†(People
v. Avery (1986) 179 Cal.App.3d 1198, 1204.)
The court is vested with broad discretion in determining whether to
reinstate probation following revocation of probation (People v. Jones (1990) 224 Cal.App.3d 1309, 1315), and its decision
to revoke probation is reviewed for an abuse of discretion. (People
v. Downey (2000) 82
Cal.App.4th 899, 909-910.) “[G]reat
deference is accorded the trial court’s decision, bearing in mind that
‘[p]robation is not a matter of right but an act of clemency, the granting and
revocation of which are entirely within the sound discretion of the trial
court. [Citations.]’ [Citation.]â€
(People v. Urke (2011) 197
Cal.App.4th 766, 773.) “‘[O]nly in a
very extreme case should an appellate court interfere with the discretion of the
trial court in the matter of denying or revoking probation.’†(People
v. Rodriguez (1990) 51 Cal.3d 437, 443.)
“[T]he
court has jurisdiction, upon revocation of probation, to place the defendant
upon a new probation, with new conditions.â€
(In re Bine (1957) 47 Cal.2d
814, 817.)
The trial court
conducted a probation violation hearing at which appellant was represented by
counsel. Many of appellant’s assertions,
as well as his challenges to the court’s finding that he violated his
probation, are of no consequence in view of his admission to the probation
violation. (See People v. Turner (1985) 171 Cal.App.3d 116, 125-126.) The record shows that on December 8, 2010,
the court did in fact modify probation to require appellant to “do 60 days of
Caltrans†and to report back on
June 8, 2011, with proof of completion.
The court also made it clear that the previously suspended prison
term of 11 years 10 months would be imposed if appellant did not comply with the
modification. Thus when appellant
returned to court on June 8, 2011, and had not completed 60 days of Caltrans
service, the court was authorized to revoke probation on that ground. There was no error. With regard to appellant’s contentions regarding
his sentence and credits, the trial court properly sentenced him and corrected
his credits.
Pursuant to the
mandate of People v. Kelly (2006) 40
Cal.4th 106, we have independently reviewed the record for potential error and
find no error.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
further statutory references are to the Penal Code unless otherwise stated.
