P. v. Duran
Filed 3/5/13 P. v. Duran CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID BARBA DURAN,
Defendant and Appellant.
D062133
(Super. Ct.
Nos. JCF25723 & JCF25259)
APPEAL from
a judgment of the Superior Court
of
County, Christopher W. Yeager, Judge. Affirmed.
David Barba
Duran appeals from the judgment entered following revocation of probation
previously granted after his plea of no contest to inflicting corporal injury
to a cohabitant (Pen. Code, § 273.5, subd. (a)). Duran received a four-year prison term after
the revocation.
FACTS
On July 26, 2010, Duran entered a negotiated no contest
plea to inflicting corporal injury on Miriam Gallegos, who had sustained a
broken ankle three months earlier during an argument. Gallegos subsequently recanted her initial
statements to police. As part of the
plea bargain, a misdemeanor battery
count and two prior prison term allegations were dismissed. The parties also agreed to Duran being placed
on formal probation for three years.
At the sentencing hearing on August 25, the
court suspended imposition of sentence and placed Duran on formal probation for
three years under standard probationary conditions, including staying in
regular contact with his probation officer, paying the imposed fines and
obeying all laws.
On March 28, 2011, Duran's probation
officer filed a petition for revocation of probation. As amended, the petition alleged Duran had
not (1) reported as directed to the probation officer, (2) obeyed all laws and
(3) paid fines totaling $310. Duran
denied the allegations of the petition.
At trial,
Horacio Carranza, Duran's probation officer, testified he met with Duran in
August 2010 and reviewed his probation conditions. Carranza also told Duran to report to him
each month by phone. Duran did not
report to Carranza other than calling him in October 2010 and once after the
probation violation notice was filed.
Carranza also testified Duran had not made any payments on his fines.
Five law
enforcement members of the Imperial Valley Street Interdiction Team testified
about a probation compliance check on Duran and Gallegos's residence on March
25. Duran and Gallegos were standing
outside the residence when the team members arrived and said they were going to
check the house. Gallegos became
somewhat hysterical, and her teenage daughter ran into the house and grabbed a
woman's white sweater and a tan purse.
Police retrieved these items from the teenager. Inside the sweater was a baggie containing 32
bindles of methamphetamine and more than $200.
Inside the purse were Gallegos's driver's license and a scale with white
residue on it. Gallegos and Duran were
taken into custody, and, during the booking process, authorities found one
bindle in Duran's right front pocket.
Also, during the booking process, Gallegos and Duran discussed the white
sweater and Duran was heard making an incriminating remark.
The trial
court found Duran had violated the conditions of his probation by failing to
(1) report to the probation officer, (2) obey all laws, and (3) pay his
fines. Subsequently, the court revoked
probation and sentenced Duran to the upper term of four years. The court said it was imposing the upper term
on the basis of Duran's criminal history.
DISCUSSION
Appointed appellate counsel
has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal,
but asks this court to review the record for error as mandated by
v. Wende (1979) 25 Cal.3d 436.
Pursuant to Anders v. California
(1967) 386 U.S. 738, counsel refers to as possible, but not arguable,
issues: (1) whether the trial court
allowed inadmissible hearsay; (2) whether there was sufficient evidence to
revoke Duran's probation; (3) whether the court erred by not reinstating
probation; (4) whether the court improperly imposed the maximum sentence; and
(5) whether the court imposed proper credits, fines and fees.
We granted Duran permission to file
a brief on his own behalf. He has not
responded.
A review of the record pursuant to
v. California, supra, 386 U.S.
738 has disclosed no reasonably arguable appellate issues. Competent counsel has represented Duran on
this appeal.
DISPOSITION
The judgment is affirmed.
McINTYRE,
Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
