Filed 5/2/18 P. v. Whisenton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
BILLY WHISENTON,
Defendant and Appellant.


A152507

(Alameda County
Super. Ct. No. 176197)



Defendant Billy Whisenton appeals from the trial court’s revocation of his probation and imposition of a three-year prison sentence for knowingly and maliciously dissuading a witness from testifying, a felony violation of Penal Code section 136.1, subdivision (a)(1). Defendant’s court-appointed counsel has filed a brief that does not raise any legal issues. He requests that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues for our consideration and affirm the trial court’s rulings.
BACKGROUND
In a May 2015 information, the Alameda County District Attorney charged defendant with one count each of human trafficking for commercial sex; pimping; pandering; and knowingly and maliciously dissuading a witness from testifying, a felony violation of Penal Code section 136.1, subdivision (a). It was further alleged that defendant was ineligible for probation and had previously been convicted and served sentences of probation for two prior felony offenses.
In August 2015, defendant entered a no contest plea to knowingly and maliciously dissuading a witness from testifying, a felony in violation of Penal Code section 136.1, subdivision (a)(1). The court dismissed the remaining counts (as well as six unrelated traffic matters). The People recommended defendant be placed on felony probation for five years, with one year in county jail and other terms and conditions. The court instructed defendant that under the terms of his plea agreement, he would be placed on felony probation for five years, conditioned on serving one year in county jail, and could be sentenced to state prison if he violated probation; defendant indicated that he understood. The probation department prepared a presentencing report for the trial court in which it made the same recommendation as the prosecution.
In September 2015, the trial court held a sentencing hearing. It suspended imposition of sentence and placed defendant on probation for five years, conditioned on his serving one year in county jail, and awarded him 346 days of credit. The court ordered that defendant “will be subject to all the standard terms and conditions of felony probation.” The court’s minutes state that this was to include that he “[r]eport forthwith (or immediately upon release from custody) to the Probation Officer and thereafter as directed by the Probation Officer and follow all directives of Probation Officer.”
In July 2017, the probation department requested that defendant’s probation be revoked because, among other things, he had never reported for probation. The trial court subsequently conducted a probation violation hearing.
At the hearing, Alameda County Deputy Probation Officer Lorena Gomes-Melano testified that, although she did not recall specifically talking to defendant, it was her practice to tell a client such as defendant before his sentencing hearing that the court would impose terms and conditions of probation, and that he would receive a green sheet of paper with the name and number of his assigned probation officer if one was assigned. She told clients that if they see a phone number on the green sheet, “make that contact.” She testified that the green sheet handed to defendant at his September 2015 sentencing hearing said “kiosk” in the upper left corner and included a phone number. She said some probationers are assigned to a “kiosk,” which is a computer located at the probation department. Such probationers also had in-person meetings with probation officers and in-person probation orientation meetings.
Alameda County Deputy Probation Officer Kristen Wells testified that she was present at defendant’s September 2015 sentencing hearing as a court officer. Although she did not recall talking to defendant specifically, it was her practice to explain to probationers at these hearings “who his probationer officer is, or if they belong to kiosk,” and that they must check in for probation orientation within days of their release. Because defendant was assigned to “kiosk” probation, Wells would have advised him that there was a probation officer assigned to kiosk cases and that he was to call that probation officer immediately upon his release from custody. She also would have told him he was to report to the kiosk and set up an appointment with the assigned probation officer, and would have given him a sheet about probation orientation. She was sure she gave defendant the green sheet at the hearing because she wrote on it that defendant was given a copy of it and she signed it.
Alameda County Deputy Probation Officer Gwendolyn Jamiol testified that she was the kiosk unit probation officer since at least September 2015. Probationers in the unit report to the kiosk once a month. Probationers must first visit with a probation officer and also attend an orientation meeting, which meetings are held twice a month.
Defendant was released from custody on October 7, 2015. He never reported to the probation department. Jamiol testified that before defendant’s arrest for his probation violation, she called the phone number in his file, but it was not a working number.
Defense counsel argued that the prosecutor had not proven that defendant had violated the terms and conditions of his probation because the trial court had failed to specifically order him to report to the probation department during the September 2015 sentencing hearing. The prosecutor disagreed, arguing the evidence indicated defendant had been told at the hearing by a court officer working on the court’s behalf that he needed to comply with the reporting requirement stated on the green sheet.
The trial court found defendant had violated the terms and conditions of probation by failing to report to the probation department. The trial court stated: “[Defendant] is a smart young man. He knows what probation is. I’ve had him on probation before and he knows what his obligations are. [¶] . . .[¶] So the Court finds he violated his probation by failing to appear.” The court sentenced defendant to serve three years in state prison with 528 days of credits and entered judgment.
Defendant filed a timely notice of appeal from the court’s revocation of his probation and sentence.
DISCUSSION
We have conducted an independent review of the record under Wende and find no arguable appellate issues.
Regarding defendant’s probation revocation, “[Penal Code s]ection 1203.2, subdivision (a), authorizes a court to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe that the person has violated any of the conditions of his or her probation. [Citation.] ‘ “When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [ Citations.]” [Citation.]’ [Citation.] The standard of proof in a probation revocation proceeding is proof by a preponderance of the evidence. [Citations.] ‘Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation.’ ” (People v. Urke (2011) 197 Cal.App.4th 766, 772, fn. omitted.)
“We review a probation revocation decision pursuant to the substantial evidence standard of review [citation], and great 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.’ ” (People v. Urke, supra, 197 Cal.App.4th at p. 773.)
The record indicates defendant was ordered, and told at the September 2015 sentencing hearing to report to the probation department upon his release from custody. Specifically, the court ordered that defendant was subject to the standard terms of conditions of probation, and defendant was told by court personnel at the time, both orally and in writing, that he was required to report to the probation department upon his release. Defendant did not report to the probation department. Therefore, there was sufficient evidence for the court to find that defendant had violated the terms and conditions of his probation and to revoke it.
As for defendant's sentencing, the court sentenced him within the range allowed by law. (See People v. Nuckles (2013) 56 Cal.4th 601, 611.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) In the absence of any clear indication that the sentencing decision was irrational or arbitrary, “ ‘the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) We see no reason to question the court’s sentencing decision here.
In short, we see no arguable appellate issues for our consideration.
DISPOSITION
The judgment is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.






















People v. Whisenton (A152507)