People v. Nittie CA2/7 ( 2014 )

Filed 6/25/14 P. v. Nittie CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B252618
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA056225)
v.
FRANK EDWARD NITTIE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles
A. Chung, Judge. Affirmed.
Eileen M. Rice, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________
FACTUAL AND PROCEDURAL BACKGROUND
After his girlfriend reported to police that her jewelry and laptop computer were
missing, Frank Edward Nittie admitted that he had taken them from her home and
pawned them. On June 12, 2012 the People charged Nittie in an information with one
count of residential burglary and one count of commercial burglary in violation of Penal
Code section 459. Nittie pleaded not guilty to the charges.
On August 12, 2012, after the jury trial had begun, Nittie entered a negotiated plea
of no contest to residential burglary (count 1). At the time he entered his plea, the court
advised Nittie of his constitutional rights and the nature and consequences of the plea,
which he stated he understood. Counsel for Nittie joined in the waivers of Nittie’s
constitutional rights. The trial court expressly found that Nittie’s waivers and plea were
voluntary, knowing, and intelligent. In accordance with the plea agreement, the trial
court sentenced Nittie to the upper term of six years in state prison, suspended execution
of sentence, and placed Nittie on five years of formal probation on the condition he
perform 30 days of work for the California Department of Transportation (Caltrans). The
court awarded Nittie presentence custody credit of 132 days and ordered him to pay a $40
court security fee, a $30 criminal conviction assessment, and a $1,440 restitution fine.
The court imposed and suspended a parole revocation fine. The court dismissed the
remaining count pursuant to Penal Code section 1385 and the negotiated agreement.
At the time of sentencing, Nittie was on summary probation for a 2011 conviction
for misdemeanor battery against a cohabitant in violation of Penal Code section 243,
subdivision (e)(1) (Los Angeles County Superior Court case No. MA052514). As part of
the sentence in this case, the trial court agreed to terminate probation in the misdemeanor
case and transfer the probation terms and conditions to this case, including the conditions
that Nittie complete a one-year domestic violence program, receive anger management
counseling, perform 15 days of community labor, and pay certain fines and fees.
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At a February 27, 2013 progress hearing, Nittie informed the trial court that he
was unable to satisfy the probation condition of Caltrans work because he was disabled.
The court converted the condition of 30 days of Caltrans work to 30 days of county jail.
On May 3, 2013 the probation department reported that Nittie had failed to comply
with the conditions that he complete a domestic violence program, perform 15 days of
community labor, and pay certain fines and fees. The court found Nittie in violation of
probation and revoked and reinstated probation with a modified condition that he serve
30 days in county jail instead of performing 15 days of community labor.
On August 8, 2013 the trial court preliminarily revoked probation and remanded
Nittie into custody because the domestic violence/anger management program had
terminated him for poor attendance. The court scheduled a probation revocation hearing.
At the September 6, 2013 probation revocation hearing, several witnesses testified
that Nittie had failed to pay certain fines and fees as directed and had been discharged
from the domestic violence/anger management program for poor attendance. Nittie
testified in his defense that he had experienced various scheduling conflicts, and he
described financial and administrative problems that prevented him from regularly
attending the program and complying with the probation department’s payment schedule
for the outstanding fines and fees. Following argument by counsel, the trial court
revoked and terminated Nittie’s probation and imposed the previously suspended six-year
state prison sentence.
DISCUSSION
We appointed counsel to represent Nittie on appeal. After an examination of the
record, counsel filed an opening brief raising no issues. On March 3, 2014 we advised
Nittie that he had 30 days to submit any contentions or issues he wished us to consider.
We have not received a response.
We have examined the record and are satisfied that Nittie’s attorney on appeal has
fully complied with the responsibilities of counsel and that there are no arguable issues.
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(See Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S. Ct. 746, 145 L. Ed. 2d 756];
People v. Kelly (2006) 40 Cal. 4th 106, 118-119; People v. Wende (1979) 25 Cal. 3d 436,
441.)
DISPOSITION
The judgment is affirmed.
SEGAL, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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