P. v. Betlach
Filed 4/4/08 P. v. Betlach 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ALAN VINCENT BETLACH, Defendant and Appellant. | E043114 (Super.Ct.No. FRE006837) OPINION |
APPEAL from the Superior Court of San Bernardino County. John N. Martin and W. Robert Fawke, Judges. Affirmed.
Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
On February 4, 2004, defendant and appellant Alan Vincent Betlach was charged in a felony complaint as follows: (1) violation of Penal Code[1]section 422, criminal threats (count 1); (2) violation of section 273.5, subdivision (a), corporal injury to spouse/cohabitant/childs parent with a prior conviction (count 2); (3) violation of section 273a, subdivision (a), child endangerment (count 3); and (4) violation of section 591, cutting a utility line (count 4). As to count 2, the complaint also alleged that defendant suffered a prior conviction of section 273.5, subdivision (a). The complaint further alleged that defendant suffered a prior conviction of section 422, criminal threats, a serious or violent felony.
On February 20, 2004, defendant withdrew his not guilty plea and entered a guilty plea as to count 2, according to the terms of a negotiated plea bargain. Defendant also waived his right to a preliminary hearing.
On March 19, 2004, the trial court found that defendants plea bargain was illegal and continued the matter for further discussion. On March 24, 2004, the court set aside the plea on its own motion. Thereafter, the complaint was amended to include a new charge, violation of section 273.5, subdivision (a), corporal injury to spouse/ cohabitant/childs parent with a prior conviction (count 5), with an enhancement for defendants alleged prior conviction of section 273.5, subdivision (a). Defendant once again waived formal arraignment, pleaded guilty to counts 2 and 5, and admitted his prior conviction, pursuant to the terms of a new plea bargain agreement. The court found a factual basis for the plea.
The court granted defendant supervised probation for a period of 60 months. Under the terms and conditions of defendants probation, he was ordered to serve 120 days in San Bernardino County Jail on the weekends. Defendant waived custody credits for time already served and also waived future conduct credits that he otherwise would have accumulated under section 4910.
On April 2, 2004, the San Bernardino County District Attorney filed a petition to revoke defendants probation based on defendants alleged violation of probation terms No. 13 (neither possess nor consume any alcoholic beverages) and No. 23 (no contact with victim). The court, after reading and considering the probation officers report, found defendant not to be in violation of his probation. The court continued defendants probation on its original terms and conditions, with an additional requirement that defendant enroll in and successfully complete a 52-week domestic violence batterers program.
On July 19, 2006, the probation officer executed a petition to revoke probation for violation of term No. 2, violate no law. The court summarily revoked probation and issued a bench warrant on August 4, 2006.
On March 26, 2007, at defendants probation revocation hearing, he admitted violating term No. 2 (violate no law) of his probation, and the court formally revoked probation. The court deemed count 2 (corporal injury to a spouse/cohabitant/childs parent with prior conviction) of the original February 4, 2004, felony complaint to be the principal count and imposed the aggravated upper term of five years in state prison. As to count 5 of the amended felony complaint (corporal injury to a spouse/cohabitant/ childs parent with prior conviction), the trial court imposed the upper term of five years in state prison, concurrent to the sentence in the principal count. The court granted defendant a total of 226 days of credit for time served, and imposed restitutions fines of $200 under section 1202.4 and $200 under section 1202.45, with the latter fine stayed pending successful completion of parole. The sentencing minute order and abstract of judgment specify defendant is to submit to DNA sampling under section 296.
On May 9, 2007, a notice of appeal was filed, by defendants counsel, based on defendants sentence or other matters occurring after his plea. On June 4, 2007, defendant, acting in propria persona, filed a notice of appeal with a request for a certificate of probable cause. The court granted the certificate on June 6, 2007.
On July 25, 2007, a trial court judge considered, but declined to recall the judgment. The court concluded that the sentencing judge had not abused his discretion.
II
STATEMENT OF FACTS[2]
A. Underlying Case
On January 30, 2004, deputies were dispatched to defendants home for alleged spousal abuse. The deputies made contact with defendant and defendants wife. Defendants wife stated that she and defendant got into an argument over defendants issues of drinking and defendant being disrespected in his own home. Defendant grabbed his wife around the neck, pushed her against the wall, and began to choke her. When she attempted to call the police, defendant broke the telephone cord. The deputies noted that the wife had visible bruising on both arms. She, however, did not require medical assistance.
B. 2007 Probation Revocation
Defendant admitted that he violated term No. 2 of his probationviolate no law. In his statement of reasons for imposing the aggravated term, the trial court stated:
Okay. Unfortunately, the defendant has a very long, long history of violence and that goes back to the 417 and battery somewhere back in 89, . . . and, with the exception of a drunk driving in 98, everything else has been 273 and 245 and criminal threats, and, unfortunately, it appears that he doesnt do the 273 or the criminal threats or the assault with a deadly weapon or likely to produce great bodily injury on somebody that might be able to defend themselves. Hes usually picking on women, and I think they deserve to be protected. That is their right, and it is the Courts obligation to do so.
That goes backthat history goes back quite some time, and it may be exacerbated if he chooses to drink, which he doesnt want to keep under control. He becomes violent and innocent people, and sometimes innocent people of the opposite sex suffer.
The court declined to follow Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham); it agreed with the prosecutor that it was only a trial right, and not applicable at probation revocation proceedings. However, at a hearing to reconsider the sentence, a different prosecutor concluded that Cunningham was not limited to trial, and could apply at a probation revocation hearing. But, the prosecutor asserted that the upper term was properly imposed under the principles of People v. Black (2007) 41 Cal.4th 799.
III
ANALYSIS
After 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 to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief; he has not done so. However, we have reviewed the notice of appeal filed, in propria persona, by defendant.
We have now concluded our independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P. J.
KING
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Because defendant entered his guilty plea prior to a preliminary hearing, the underlying facts to support the plea are not contained in the record on appeal.
