P. v. Charles
Filed 11/24/09 P. v. Charles CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JACQUES EARL CHARLES, Defendant and Appellant. | E047784 (Super.Ct.Nos. FSB035490, FSB036675, FVA016333) OPINION |
APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea agreement on July 11, 2003, defendant Jacques Earl Charles, represented by counsel, pled guilty in case No. FVA016333 to one count of assault with a deadly weapon, to wit, an automobile (Pen. Code, 245, subd. (a)(1)),[1], [2]and admitted that he had used a deadly weapon, to wit, an automobile, in the commission of the crime; in case No. FSB035490 to one count of child endangerment ( 273a, subd. (a)); and in case No. FSB036675 to one count of unlawful sexual intercourse with a minor more than three years younger ( 261.5, subd. (c)) and one count of misdemeanor resisting arrest ( 148, subd. (a)(1)). In return, the remaining allegations in the above-consolidated cases and other pending cases were dismissed, execution of the state prison sentences were suspended, and defendant was granted five years of supervised probation on various terms and conditions, including serving 365 days in county jail.
In 2007, defendant violated the terms and conditions of his probation. Following a probation revocation hearing in January 2009, defendant was found to be in violation of his probation for failing to abide by the law. Defendants probation was thereafter revoked and the previously suspended sentence of six years was imposed in case No. FSB035490 with credit for time served. Defendant was also ordered to concurrently serve the previously suspended sentences of three years and two years in case Nos. FVA016333 and FSB036675, respectively, with credit for time served.[3] Defendant appeals from the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND[4]
A. Case No. FSB035490
On May 23, 2002, during an argument with his girlfriend, defendant grabbed their six-month-old child and jumped off the second floor balcony while holding the child. The child was not injured. Defendant resisted arrest. He was taken into custody after he was subdued. On July 22, 2002, defendant was charged with child endangerment ( 273a, subd. (a)) and resisting arrest ( 148, subd. (a)(1)).
B. Case No. FSB036675
Between July 1, 2001, and June 20, 2002, defendant had unlawful sexual intercourse with a 15-year-old girl, who later bore his child. When defendant was contacted at his residence by officers, he attempted to flee and a struggle ensued. Defendant was eventually subdued and taken into custody. On October 28, 2002, defendant was charged with five counts of unlawful sexual intercourse with a minor who was three years younger than defendant ( 261.5, subd. (c)) (counts 1-5) and one count of resisting arrest ( 148, subd. (a)(1)). Count 1 also alleged defendant personally inflicted great bodily injury upon the victim. ( 12022.7, subd. (a), 1192.7, subd. (c)(8).)
C. Case No. FVA016333
On August 20, 2001, defendant pulled up next to where his girlfriend was standing, got out of his vehicle, grabbed her by the shirt, and pulled her to his vehicle. He then got into his vehicle and drove down the street, while holding onto the victim, who was outside the vehicle. The victim was dragged down the asphalt, where she lost her balance and fell. In November 2001, defendant was charged with assault with a deadly weapon, to wit, an automobile. ( 245, subd. (a)(1).)
D. Probation Revocation
On July 11, 2003, defendant pled guilty in case No. FVA016333 to assault with a deadly weapon, to wit, an automobile ( 245, subd. (a)(1)), and admitted the use of a deadly weapon, to wit, an automobile, in the commission of the crime; in case No. FSB035490 to child endangerment ( 273a, subd. (a)); and in case No. FSB036675 to one count of unlawful sexual intercourse with a minor ( 261.5, subd. (c)) and one count of misdemeanor resisting arrest ( 148, subd. (a)(1)). In return, remaining allegations and pending cases were dismissed, state prison sentence was suspended, and defendant was granted five years of supervised probation on various terms and conditions.
In November and December 2006, warrants were issued for defendants arrest as it was alleged defendant had violated the terms of his probation in all three cases for failing to report to and cooperate with probation, failing to inform probation of his residence, and failing to pay his fees and fines. On March 9, 2007, following a revocation hearing, the trial court found defendant was not in violation of probation and his probation was reinstated.
On March 28, 2007, defendant was arrested for driving under the influence (Veh. Code, 23152, subd. (a)); driving under the influence with a blood-alcohol level of 0.08 percent or higher (Veh. Code, 23152, subd. (b)); and resisting arrest ( 148, subd. (a)(1)).
On May 8, 2007, defendant was arrested for speeding (Veh. Code, 22350) and driving with a suspended drivers license (Veh. Code, 14601.1, subd. (a)).
In August 2008, petitions to revoke defendants probation in all three cases were filed for violating the law and failing to report to probation. Warrants were issued for defendants arrest.
By November 10, 2008, defendant was in custody and arraigned on the petitions to revoke his probation. Defendant denied the allegations in the petitions, and filed a motion to dismiss the petitions, essentially claiming his due process rights were violated by the probation departments failure to file the petitions in a timely manner following notice of the alleged violations. The People subsequently filed an opposition.
On January 13, 2009, defendants motion to dismiss the petitions was denied. The court immediately proceeded to the contested probation revocation hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451. At that hearing, Officer Blessinger testified that on May 8, 2007, he stopped defendant for speeding. In the course of conducting the traffic stop, Officer Blessinger determined that defendants drivers license was suspended. A certified copy of defendants DMV record was admitted into evidence. This record showed that defendants drivers license had been suspended or revoked numerous times between August 2001 and April 2007.
At the revocation hearing, Deputy McAllister also testified. On March 28, 2007, around 12:15 a.m., Deputy McAllister was dispatched in reference to a disturbance call at an apartment building. When he arrived at that location, he saw multiple vehicles leaving the area and ordered the vehicle defendant was driving to stop. Defendant failed to obey the deputys order and then continued driving from the location. The deputy returned to his marked patrol vehicle and followed defendant. Defendant eventually stopped and exited the drivers side of the vehicle. Upon making contact with defendant, the deputy detected the smell of alcohol coming from defendants breath and person. Field sobriety tests were conducted on defendant by Deputy Petersen. Defendant showed signs of intoxication. Subsequent testing showed defendants blood-alcohol level to be 0.11 percent.
After being arrested and placed in a patrol vehicle, defendant began banging his head on the window. He eventually broke the rear window of the vehicle and attempted to climb out. The deputy pulled over, called for an additional unit, and placed defendant back inside the vehicle.
Defendant testified on his own behalf and admitted to drinking on the date of the incident, but claimed his friend was driving and not him. He also stated that he had informed Deputy McAllister that he was not driving the vehicle. He further claimed that Deputy McAllister had performed the field sobriety tests and that Deputy McAllister had informed him that he had passed the tests. He denied resisting arrest and claimed he had been beaten by the officers for no apparent reason. Defendant also explained that he was not aware his drivers license had been suspended until after he was informed by Officer Blessinger in May 2007.
Defendants girlfriend and mother also testified on defendants behalf. Defendants mother stated that defendants friend was driving the vehicle before it was stopped by the police. Defendants girlfriend and his mother also corroborated defendants testimony that he was beaten by the police.
Following arguments from counsel, the trial court found that defendant violated the terms of his probation by driving on a suspended drivers license, driving under the influence, committing misdemeanor vandalism, and resisting, delaying, or obstructing an officer. The court ordered defendants probation remain revoked and sentenced defendant to the previously suspended sentence as follows: six years in case No. FSB035490; a concurrent term of three years in case No. FVA016333; and a concurrent term of two years in case No. FSB036675. Defendant was awarded the appropriate credits for time served in each case.
II
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
GAUT
J.
MILLER
J.
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[1] The record on appeal shows the charge as both Penal Code section 245, subdivisions (a)(1) and (a)(2). The actual charge defendant pled guilty to ( 245, subd. (a)(1)) was corrected by the trial court on August 10, 2009.
[2] All future statutory references are to the Penal Code unless otherwise stated.
[3] The presentence custody credits awarded in case Nos. FSB03540 and FSB036675 were later corrected by the trial court on August 10, 2009.
[4] The underlying factual backgrounds in each case are taken from the probation report dated September 10, 2003.
