P. v. Nelson CA1/2 ( 2013 )

Filed 7/26/13 P. v. Nelson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A137793
v.
SHAWN ALLEN NELSON, (Sonoma County Super. Ct.
No. SCR606427A)
Defendant and Appellant.
This appeal follows from a contested revocation of probation hearing and the
imposition of the five-year sentence. Appellant’s counsel filed the opening brief without
raising any specific issue and requests that the court conduct an independent review of
the entire record in accordance with People v. Wende (1979) 25 Cal.3d 436. Appellant
was apprised by counsel of his right to file a supplemental brief on his own behalf and
did not do so. We have reviewed the entire record and found no arguable issues that
would present a meritorious appeal.
BACKGROUND
The underlying information filed by the Sonoma County District Attorney’s Office
alleged that appellant struck an unsuspecting victim in the face with a bottle while
checking out of a grocery store. Appellant entered a plea of no contest to the charge of
assault by force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)),1 and
admitted the allegation of a prior prison term enhancement. (§ 667.5, subd. (b).)
1
Further unspecified code sections refer to the Penal Code.
1
Appellant was placed on probation pursuant to a negotiated agreement that suspended the
imposition of sentence and imposed standard various terms and conditions, including that
he avoid illegal substances and obey all laws.
A petition to revoke probation was filed in May 2012, alleging that appellant had
failed to submit to chemical testing as directed, and that he had failed to inform his
probation officer of his whereabouts as directed. A month later, appellant was found in
violation of probation, which was reinstated and modified by extending the term for an
additional 12 months, among other conditions. Six months later, appellant violated
probation again when he submitted to a bad urine sample and admitted using
methamphetamine.
On January 4, 2013, Probation Officer Kelly Dunaway testified in support of the
latest revocation petition that appellant had tested positive for amphetamine and
methamphetamine and had admitted that he used “meth” to alleviate back pain. This
presumptive positive was based on his admission of the drug usage and not sent to a lab
for confirmation. Appellant’s probation was summarily revoked. The court denied a
further reinstatement of probation and imposed the upper term of four years on the
underlying assault by means of force likely to cause great bodily injury offense, along
with a consecutive year for the section 667.5, subdivision (b) prior, for a total of five
years in state prison.
Appellant filed a timely notice of appeal.
DISCUSSION
This appeal is from the revocation of appellant’s probation and the imposition of
the five-year term upon execution of the original sentence. Appellant’s counsel raises no
issues and asks us to conduct a review of the entire record consistent with Wende to
determine whether there are any issues which would, if resolved favorably to appellant,
result in reversal or modification of the judgment.
Revocation of probation lies within the broad discretion of the trial court. (People
v. Angus (1980) 114 Cal.App.3d 973, 987.) Absent abuse of that discretion, this court
will not disturb the trial court’s findings. Section 1203.2, subdivision (a) authorizes a
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court to revoke probation if “the court, in its judgment, has reason to believe . . . that the
person has violated any of the conditions of his or her supervision. . . .”
The facts in a probation revocation hearing are to be proven by a preponderance of
the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-441.) Here, the trial court
relied on evidence of appellant’s admission and presumptive positive test result to
establish his use of prohibited drugs, and we discern no abuse of the court’s discretion in
revoking appellant’s probation.
As to the original suspended sentence, where, as here, an appellant has pled not
guilty of no contest to an offense, the scope of reviewable issues is restricted to matters
based on constitutional, jurisdictional, or other grounds going to the legality of the
proceedings leading to the plea; guilt or innocence are not included. (People v.
DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Nothing in the record before us indicates appellant was mentally incompetent to
stand trial or to understand the admonitions he received from the court prior to entering
his plea, and to thereupon enter a knowing and voluntary plea. The record provides a
factual basis for the plea.
The admonitions given appellant at the time he entered his plea fully conformed
with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969)
1 Cal.3d 122, and his waiver was knowing and voluntary. Appellant was at all times
represented by competent counsel who protected his rights and interests.
The trial court’s imposition of the upper term was recommended by the probation
report, which stressed that appellant’s prior performance on probation was unsatisfactory.
The court also noted that the underlying offense had been a violent attack on a stranger
and that appellant had a history of similar random acts of violence. Accordingly the
upper term chosen by the trial court was authorized by law.
Our independent review having revealed no arguable issues that require further
briefing, the judgment of conviction, which includes the sentence imposed, is affirmed.
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DISPOSITION
Our independent review of the record reveals no arguable issues that require
further briefing. The judgment is affirmed.
_________________________
Lambden, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
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