People v. Bounthavy CA5 ( 2015 )

Filed 9/2/15 P. v. Bounthavy CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069056
Plaintiff and Respondent,
(Super. Ct. Nos. F09906439 &
v. F10902975)
PAVID AM BOUNTHAVY,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Levis, Judge.†
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Franson, J. and Peña, J.
†
Retired Judge of the Fresno Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant/defendant Pavid Am Bounthavy was placed on probation after he
pleaded guilty to narcotics and firearm offenses. After two violations, the court revoked
probation and sentenced him to prison. On appeal, his appellate counsel has filed a brief
that summarizes the facts with citations to the record, raises no issues, and asks this court
to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).)
We affirm.
FACTS
Case No. F09906439
On November 10, 2009, defendant was found in possession of Ecstasy, a
controlled substance.
On November 13, 2009, a complaint was filed in case No. F09906439, charging
defendant with count I, felony possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)).
On or about November 16, 2009, defendant pleaded guilty and was placed on
formal probation for two years. He was ordered to enroll, attend, and complete a drug
treatment program pursuant to Proposition 36 (Pen. Code, § 1210.1, subd. (a)).1
Defendant’s performance on Proposition 36 probation was poor. He failed to
submit to weekly drug tests and had excessive absences from the drug treatment program.
On February 11, 2010, he was terminated from the treatment program for failing to
complete group sessions.
Case No. F10902975
Shortly before midnight on June 10, 2010, officers conducted a traffic stop on a
vehicle in Fresno. Defendant was sitting in the right rear seat. An officer recognized
defendant as a member of the Laos Blood gang based on prior contacts. The officer
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
asked defendant if he was on probation and subject to being searched, and defendant said
yes. A semiautomatic handgun was found in the area where defendant was sitting. The
weapon was wrapped in a red bandana and loaded with seven rounds. As he was being
arrested, defendant cursed and spontaneously said, “I’m going through this again.”
On June 14, 2010, a complaint was filed in case No. F10902975, charging
defendant with count I, possession of a firearm by a felon (§ 12021, subd. (a)(1)).
Defendant later told the probation officer that they were going to purchase marijuana
when the police stopped them, he took the blame for the gun, and he did not hang out
with the same people anymore.
Plea and Reinstatement on Probation
On June 22, 2010, defendant pleaded guilty in case No. F10902975 and admitted
the probation violation in case No. F09906439. The court terminated defendant’s
participation in the section 1210.1 drug treatment program.
On September 29, 2010, the court terminated defendant’s probation under
Proposition 36. However, the court reinstated defendant on probation in case
No. F09906439 pursuant to section 1203, and extended the period for one year subject to
certain terms and conditions, including service of 210 days in jail. As for case
No. F10902975, defendant was placed on formal probation for two years. Defendant
failed to maintain contact with probation.
Subsequent Probation Violations
On January 24, 2011, defendant was arrested for a misdemeanor violation of
section 148.9, subdivision (a). He was released but repeatedly failed to appear and bench
warrants were issued.
On August 8, 2012, the court found defendant violated probation in both cases for
being out of contact with probation and failing to appear. In each case, the court
reinstated and extended probation for two years, and ordered defendant to serve 210 days
in jail.
3.
In November 2012, defendant failed two drug tests. He did not maintain contact
with probation and repeatedly failed to appear at hearings. A bench warrant was issued.
He was taken into custody in March 2013, and the court revoked probation.
Sentencing
On February 28, 2014, defendant admitted violating probation in both cases based
on a positive drug test. The court sentenced him to the upper term of three years in
prison in case No. F10902975 and a concurrent term of two years in case No. F09906439.
On March 12, 2014, defendant filed a timely notice of appeal in both cases. He
requested and received certificates of probable cause.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on July 24, 2014, we invited
defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
4.