The People v. Sanchez CA4/2 ( 2013 )

Filed 9/24/13 P. v. Sanchez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E058134
v. (Super.Ct.No. FSB1201364)
GERARDO SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
Paul S. Berger, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On April 23, 2012, an information charged defendant and appellant Gerardo
Sanchez with attempted second degree robbery (Pen. Code, §§ 664, 211, count 1) and
assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4),
count 2). The information also alleged that count 1 was a serious and violent felony.
(Pen. Code, §§ 1192.7, subd. (c), 667.5, subd. (c).)
On June 15, 2012, upon motion of the People, a prior prison term allegation was
added to the information. (Pen. Code, § 667.5, subd. (b).) Defendant entered into a
negotiated plea agreement, pleading guilty to count 1 (attempted robbery) and admitting
the prior prison term allegation. In exchange, all other counts and allegations were to be
dismissed at the time of sentencing. Defendant was advised of and waived his
constitutional rights.
At the sentencing hearing on July 16, 2012, the trial court stated that defendant’s
conviction justified probation only if unusual circumstances were present. Defense
counsel argued that probation was warranted in light of defendant’s youth and lack of a
significant prior criminal record. (See Cal. Rules of Court, rule 4.413(c)(2)(C).)
The trial court agreed that defendant had indicated a willingness to comply with
probation and that he was “relatively young.” Therefore, the trial court found unusual
circumstances applied and placed defendant on probation. The court then imposed a
suspended four-year prison sentence in accordance with the terms of the plea
agreement—the upper term of three years for attempted robbery, plus a consecutive one-
year enhancement for the admitted prior prison term allegation. The court suspended
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execution of defendant’s sentence and placed him on three years’ felony probation under
the terms and conditions specified in the probation report. Defendant was required to
serve 365 days in county jail. He received credit for time served consisting of 110 actual
days plus conduct credits pursuant to Penal Code section 4019. The court also imposed
various fees and fines.
On October 30, 2012, a petition to revoke defendant’s probation was executed.
The petition alleged that defendant had violated his probation by failing to comply with
Term Nos. 3, 4, and 8. The petition stated that defendant failed to report to probation for
his scheduled meeting on October 1, 2012, and that subsequent compliance checks
revealed that defendant had moved without notifying his probation officer.
On November 1, 2012, defendant appeared in court and denied the allegations of
the petition. The trial court revoked defendant’s probation and held him in custody
pending a revocation hearing.
A contested probation revocation hearing under People v. Vickers (1972) 8 Cal.3d
451 (Vickers) was set in January 2013, and a supplemental probation officer’s report
dated December 4, 2012, was submitted to the court recommending that defendant’s
probation remain revoked and that the previously suspended prison sentence be executed.
After several continuances, the Vickers hearing was held on February 4, 2013. At the
conclusion of the hearing, the trial court found that defendant had violated the terms of
his probation, specifically Term Nos. 3, 4, and 8. The matter was continued to February
20, 2013, to determine if defendant was amenable to supervised probation.
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On February 20, 2013, the trial court revoked defendant’s probation and imposed
the previously suspended four-year state prison sentence. The court awarded defendant a
total of 466 days of credit for time served, consisting of 233 actual days and 233 days of
conduct credit under Penal Code section 4019.
On February 21, 2013, defendant filed a timely notice of appeal. Defendant
indicated that “[t]his appeal is after a contested violation of probation.” (Pen. Code,
§ 1237, subd. (b).)
STATEMENT OF FACTS1
Defendant’s terms of probation included the following: “Report to the Prob[ation]
officer in person immediately upon release from custody and thereafter once every
fourteen (14) days or as directed” (Term No. 3); “[c]ooperate with the probation officer
in a plan of rehabilitation and follow all reasonable directives of the probation officer”
(Term No. 4); and “[k]eep the probation officer informed of place of residence and
cohabitants and give written notice to the probation officer twenty-four (24) hours prior
to any changes. Prior to any move provide written authorization to the Post Office to
forward mail to the new address” (Term No. 8).
Defendant’s probation officer testified that defendant had failed to report for their
first scheduled appointment on October 1, 2012. On October 3, the officer conducted a
compliance check at defendant’s address listed in the probation file. Defendant’s
younger brother answered the door and informed the officer that defendant no longer
1 Because this appeal is after a contested violation of probation, the facts of the
underlying offense are not relevant to this appeal.
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lived at the residence. When the officer inquired as to whether defendant’s belongings
were still at the residence, the boy pointed to the living room closet and stated that
defendant had taken his belongings. Defendant had not notified the probation officer that
he had moved from his registered address.
The following day, defendant’s biological mother spoke with the probation officer
by telephone and stated that defendant had moved out of the house. The mother said that
defendant was “barely staying there,” that she had let him use her address for probation,
but that he had moved all his things out, and that she believed he was staying with his
girlfriend. A few days later, defendant’s foster mother contacted the probation officer
and advised the officer that she believed defendant was staying with his girlfriend.
On November 27, 2012, the probation officer located defendant in jail. Defendant
told her that he had moved out of his mother’s house because he and his mother were not
getting along, and that he had moved in with his girlfriend. When the officer advised
defendant that he had a duty to notify the probation officer of his change of address, he
acknowledged his obligation and did not deny that he had failed to do so. Defendant also
admitted that he had missed the scheduled appointment on October 1, 2012. Defendant
stated that during the time he had been living with his girlfriend, he worked and took the
bus to work. He had also been staying with various friends to facilitate his commute to
work.
Defendant’s biological mother testified that from the end of September to the first
part of October 2012, defendant worked “at a pallet yard in Montclair” and resided with
her in San Bernardino, unless his work schedule made it too difficult for him to do so.
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Defendant slept on the sofa. She also stated that defendant had a difficult commute,
which required him to walk, as well as take a train and bus to get to work. She added that
defendant kept some of his belongings in her living room. Under cross-examination,
defendant’s mother denied telling the probation officer that her son had moved out.
One of defendant’s coworkers testified that he had worked with defendant since
July 2012. The coworker testified that defendant was “a very hard worker [and] he
would get there on time and do what needed to be done.” He further stated that defendant
was a “valued” employee and was welcome “back to work any time.”
At the conclusion of the hearing, the court stated that defendant had clearly
violated his probation by failing to report and cooperate with his probation officer. The
court, however, stated, “[w]hether or not he’s amenable [to probation reinstatement] is a
different question and a tougher one, perhaps.” Defense counsel claimed that defendant
was working to pay off his court-imposed fines, but the court interjected that there was no
evidence that the fines were being paid. Defense counsel continued that defendant was
working, was “willing to commit himself to a schedule,” and had “[a]ll of the requisite
tools . . . to succeed on probation.” Defense counsel asked that defendant be given a
second chance.
In opposition, the prosecutor argued that defendant had shown an utter disregard
for complying with the terms of his probation, there had not been any indication that
defendant had made a single payment on his restitution, and defendant’s reasons for
moving around were conflicting.
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The court found defendant to be in violation of Term Nos. 3, 4, and 8 of his
probation and continued the hearing to February 20, 2013, in order to “reread the
probation report and consider the testimony offered” at the hearing.
The probation officer stated in the report: “The defendant’s criminal history
includes felony convictions, prior probation grants, prior prison commitments and
probation and parole violations. He was completely aware of the expectations of his
probation grant and of the consequences should he fail to cooperate with the terms and
conditions of probation.” Despite defendant’s expressions of interest in turning his life
around, “defendant appears to be very irresponsible and misguided,” and had “almost
exhausted his local custody time.” The officer recommended that defendant’s probation
remain revoked and that his four-year prison sentence be reinstated.
On February 20, 2013, the trial court announced its sentencing decision. The court
stated that it had considered several factors in this case and had weighed the factors both
in favor of and against reinstating probation. The court indicated that if defendant had
come in with a clean record, it might be inclined to give him a second chance. However,
defendant had previously been on probation and had admitted to serving a prior prison
term. Those facts, combined with the seriousness of the offense, convinced the trial court
that the previously suspended sentence should be executed.
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
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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, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P.J.
We concur:
RICHLI
J.
KING
J.
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