People v. Vargas CA6 ( 2015 )

Filed 10/5/15 P. v. Vargas CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H041848
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. 213738, C1482392)
v.
JUAN JOSE VARGAS,
Defendant and Appellant.
In case No. 213738, the county probation department filed a petition for
revocation of community supervision in February 2014, alleging that defendant failed to
maintain contact with the probation department and failed to report to the probation
department as directed. According to the petition, defendant was originally convicted in
2013 for violating Penal Code sections 496d and 594, subdivisions (a) and (b)(1),1 was
sentenced to two years in prison, and was released in January 2014 on post-release
community supervision (PRCS).
On March 24, 2014, defendant admitted that he violated PRCS. The trial court
reinstated PRCS with modified terms to include 30 days in jail, with 16 days credit. The
court set a review hearing for April 22, 2014.
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All further statutory references are to the Penal Code unless otherwise indicated.
Defendant did not appear at the April 22, 2014 review hearing, and PRCS was
summarily revoked. On October 20, 2014, defendant admitted that he violated PRCS.
The trial court reinstated PRCS with modified terms to include 180 days in jail, with
180 days credit.
In the meantime, in June 2014, defendant was charged by information in case
No. C1482392 with child endangerment (§ 273a, subd. (a)) and misdemeanor being
under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
The offenses allegedly took place on or about May 1, 2014. The information further
alleged that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12), and that he had
served two prior prison terms (§ 667.5, subd. (b)).
The information was later amended to charge count 1, child endangerment
(§ 273a, subd. (a)), as a misdemeanor. Defendant pleaded no contest to the amended
count and to the count for being under the influence of a controlled substance (Health &
Saf. Code, § 11550, subd. (a)). Defendant entered his pleas with the understanding that
he would be placed on probation for four years with various terms and conditions,
including that he serve 10 months in jail.
According to the probation officer’s report, which was based on a police report,
defendant was at a park on May 1, 2014, with a two-year-old child. A witness reported
that defendant appeared to be under the influence of something and was not paying
attention to the child. The witness later observed defendant in the bathroom completely
naked in front of a sink. The witness reported the incident to the facility staff. A staff
member heard defendant slamming and hitting something and cursing. The staff member
called the police. The police spoke with defendant, who appeared to be under the
influence of a stimulant. Defendant stated that he was homeless and that he used the
restroom to wash up. He also stated that he and the child had slept on a relative’s
driveway the previous night, but he could not tell the officers the name or location of the
relative. Defendant appeared confused and had difficulty speaking. He could not tell the
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officers the location of the child’s mother or the ages of his other children. The child was
dirty and was sitting in a filthy stroller. Defendant was arrested and the child was
released to the care of child protective services.
On November 21, 2014, the sentencing hearing was held on the child
endangerment and controlled substances convictions. The trial court suspended
imposition of sentence and placed defendant on probation for four years with various
terms and conditions, including that he serve 10 months in jail, with 229 days credit.
Defendant was ordered to pay various fines and fees. The court also entered a protective
order for the child.
On December 8, 2014, defendant filed a notice of appeal and request for certificate
of probable cause in case Nos. 213738 (the PRCS case) and C1482392 (the child
endangerment and controlled substances case). The court denied the request for the
certificate.
We appointed counsel to represent defendant in this court. Appointed counsel has
filed a brief in this court which states the case and facts but which raises no issues.
We sought to notify defendant of his right to submit written argument in his own
behalf within 30 days. Defendant listed his mailing address as “transient” on his notice
of appeal. Following inquiries by this court, defendant’s appellate counsel executed a
declaration on May 20, 2015, explaining counsel’s efforts to locate defendant. Counsel
was not able to locate defendant or otherwise obtain contact information for him. This
court mailed notification to defendant’s last known address, the county jail, on May 21,
2015. We have received no communication from defendant.
Defendant’s notice of appeal does not specify the date of the order or judgment
being appealed. In case No. 213738, the notice of appeal is timely only as to the
October 20, 2014 order in which the trial court reinstated PRCS with modified terms.
We requested supplemental briefing from the parties regarding the date of the judgment
or order being appealed from, and whether the record on appeal was incomplete. The
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parties agreed that defendant may be appealing from the October 20, 2014 order, and that
the record on appeal should include a reporter’s transcript of the oral proceedings on that
date. This court ordered the record augmented accordingly.
In case No. C1482392, the notice of appeal is timely as to the November 21, 2014
judgment (order of probation). The record reflects that the trial court entered a protective
order on that date protecting the child from defendant. The parties agreed in
supplemental briefing that the record on appeal should include the protective order, and
this court ordered the record augmented.
The November 21, 2014 protective order includes a stay-away order that does not
specify the number of yards that defendant must stay away from the protected child. It
states that defendant “must not come within [blank] yards of the” protected child. We
will remand the matter for the limited purpose of the trial court specifying the distance
that defendant must stay away from the protected child.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006)
40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no
arguable issue on appeal.
DISPOSITION
In case No. 213738, the October 20, 2014, order is affirmed.
In case No. C1482392, the judgment is reversed and the matter is remanded for the
limited purpose of the trial court specifying in the protective order the distance that
defendant must stay away from the protected child.
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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MIHARA, J.
__________________________
GROVER, J.