People v. Hood CA3 ( 2023 )

Filed 12/22/23 P. v. Hood CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C098999
Plaintiff and Respondent, (Super. Ct. No. 62173911)
v.
ALFRED FITZGERALD HOOD,
Defendant and Appellant.
Appointed counsel for defendant Alfred Fitzgerald Hood filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) Defendant filed a supplemental brief. Finding no arguable errors that would result
in a disposition more favorable to defendant, we will affirm the judgment.
I. BACKGROUND
In 2022, a jury found defendant guilty of being a felon in possession of a firearm
(Pen. Code,1 § 29800, subd. (a)(1)) and being a felon in possession of ammunition
1 Undesignated statutory references are to the Penal Code.
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(§ 30305, subd. (a)(1)). As to each conviction, the jury found true defendant was armed
with a firearm. In a bench trial, the court found true that: (1) defendant had two prior
felony convictions under sections 1170.12 and 667; (2) defendant’s prior convictions
were numerous or of increasing seriousness; and (3) defendant had served a prior prison
or county jail term. The court subsequently granted defendant’s motion to strike the prior
strikes. On January 6, 2023, the court sentenced defendant to three years for the firearm
conviction and eight months for the ammunition conviction. The court suspended
execution of that sentence and, after making an unusual case finding, granted defendant
two years’ formal probation.
A petition to revoke defendant’s probation was subsequently filed alleging
indecent exposure (§ 314, subd. (1)), assault against a police officer (§ 241, subd. (c)),
resisting arrest (§ 148, subd. (a)(1)), possession of drug paraphernalia (Health & Saf.
Code, § 11364, subd. (a)), possession of alcohol, and possession of a knife.2 At the
probation violation hearing, a City of Roseville police officer testified that he responded
to a call regarding a person disrobing in public and acting irrationally. That person was
later identified as defendant. An electrical and building inspector testified that he
witnessed defendant standing on a front lawn disrobing and grabbing and shaking his
penis. A Placer County probation officer also testified that he searched a room in
defendant’s mother’s home and found drug paraphernalia, a knife, and an empty bottle of
chardonnay. Testifying in his defense, defendant denied ever exposing himself and
denied living in his mother’s home.
The trial court found defendant in violation of probation for indecent exposure,
assault on a police officer, and willfully resisting a police officer. The court did not find
2 Prior to the probation violation hearing, defense counsel declared a doubt as to
defendant’s competency pursuant to section 1368. The court ultimately found defendant
competent, and proceedings were reinstated.
2
sufficient evidence for the alleged probation violations for possession of drug
paraphernalia, alcohol, or a knife. The court concluded defendant had failed on
probation. The court declined to reinstate probation and lifted the stay on the previously
imposed sentence. On July 7, 2023, defendant filed a notice of appeal as to the contested
violation of probation.
II. DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural
history of the case and asks this court to review the record and determine whether there
are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at p. 436.) In that
opening brief, defendant “personally requests” we consider whether the trial court erred
in assessing certain fines and fees, and whether the trial court erred in declining
defendant’s request to strike his admitted prior strikes for sentencing purposes. Such
claims are foreclosed in this appeal. “When a court imposes sentence but suspends its
execution at the time probation is granted, the defendant has the opportunity to challenge
the sentence in an appeal from the order granting probation. [Citation.] If the defendant
allows the time for appeal to lapse during the probationary period, the sentence becomes
final and is not appealable.” (People v. Kelly (2013) 215 Cal.App.4th 297, 307; see also
People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Here, defendant did not timely
appeal the January 2023 order granting probation in which his sentence and the fees and
fines were imposed. (See Cal. Rules of Court, rule 8.308(a) [“notice of appeal . . . must
be filed within 60 days after the rendition of the judgment or the making of the order
being appealed”].) He therefore cannot now challenge that order in this appeal.3
3 We note that the claim regarding defendant’s prior strikes also appears to be without
basis as the trial court granted defendant’s motion pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.
3
Defendant was advised by counsel of his right to file a supplemental brief within
30 days from the date the opening brief was filed. Defendant filed a supplemental brief
asserting that the prosecution’s witnesses perjured themselves at the probation violation
hearing, and that such testimony should have been excluded on this basis. Our review is
limited to the record on appeal (see People v. Szeto (1981) 29 Cal.3d 20, 35), and there is
nothing in the trial court record supporting defendant’s claim that these witnesses
perjured themselves. In any event, the claim is forfeited because it was not raised below.
(See People v. Doolin (2009) 45 Cal.4th 390, 437.)
Further, following an independent review of the record, we find that no arguable
factual or legal issues exist.
III. DISPOSITION
The judgment is affirmed.
/s/
Wiseman, J.*
We concur:
/s/
Hull, Acting P. J.
/s/
Mesiwala, J.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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