People v. Tomahawk CA1/4

Filed 8/30/16 P. v. Tomahawk CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A147587
v.
CHARLINA MAY TOMAHAWK, (Sonoma County
Super. Ct. No. SCR-659476)
Defendant and Appellant.
This is an appeal from judgment after the trial court revoked the probation of
defendant Charlina May Tomahawk and ordered her to, among other things, serve four
years in state prison. After defendant filed a timely notice of appeal, appellate counsel
was appointed to represent her. Appointed counsel has filed a brief pursuant to People v.
Wende (1979) 25 Cal. 3d 436 (Wende), in which he raises no issue for appeal and asks this
court for an independent review of the record. (See also People v. Kelly (2006) 40
Cal. 4th 106, 124 (Kelly).) Counsel attests that defendant was advised of her right to file a
supplemental brief in a timely manner, but defendant has not exercised such right.
We have examined the entire record in accordance with Wende. For reasons set
forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly,
we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2014, defendant was charged by complaint with one count of
assault with a deadly weapon on a peace officer. (Pen. Code, § 245, subd. (c)).
According to the probation report, on December 10, 2014, police officers responded to a
report of subjects in a vehicle dumping trash. Two males and two females were by a
black Honda when the officers arrived at the scene. As an officer approached the group,
defendant “turned towards the officers with a fixed blade knife in her right hand with the
blade pointed toward the officers.” Defendant then “took a step forward, closing the
distance to approximately 3 to 5 feet, which Officer Rodriquez believed could be a threat
to their lives.”
On February 6, 2015, defendant entered a no contest plea in exchange for
probation. On March 20, 2015, the court suspended imposition of sentence, and placed
her on probation for three years, conditioned upon her serving time in county jail, for
either one year or until such time that a bed became available at Turtle Lodge
rehabilitation center.
On March 25, 2015, defendant was transferred to Turtle Lodge; that evening she
violated probation by leaving the facility. The court reinstated probation and ordered her
to enter and complete the Turtle Lodge program, warning her this would be the “last
opportunity to actually participate in the program.”
On May 21, 2015, defendant agreed to probation modification, exchanging the
Turtle Lodge program condition for serving 365 days in county jail minus credits,
followed by treatment as directed by the probation department. All parties expected that
defendant would apply to the Friendship House program upon her release from the
county jail. Defendant was required to report to the probation department within two
working days from her release from custody.
Following her release from custody, defendant failed to report to the probation
department. On November 4, 2015, defendant admitted to violating probation by failing
to keep in contact with the probation department and by testing positive for
methamphetamine.
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At the January 25, 2016 probation revocation hearing, defense counsel reported
that defendant had been accepted to Friendship House in San Francisco, a 3 to 6-month
program with a year of aftercare through Sonoma County Indian Health Project. Defense
counsel further explained that defendant had not completed the Turtle Lodge program
because she was the only female there, “which made her very apprehensive and afraid of
the program.” Defendant asked the court to allow her to serve her probation at
Friendship House. She told the court that when she was released from jail she did not
have a support system in place, but now she had a place to stay, as well as a job that was
waiting for her when she got out. She was regretful about the position that she had put
the court in, but asked for another chance to be with her daughter and her family.
Defendant’s adoptive mother, Kendall Smith, testified that defendant needed
“comprehensive treatment.” Smith thought that court monitored treatment was the
chance for defendant to turn things around.
In rebuttal, the prosecutor argued that although defendant was “saying all the right
things here today, . . . her performance in the past has demonstrated she is not amenable
to Probation.” The prosecutor thought defendant “should be sent to prison for the
midterm.”
The court denied defendant’s request to serve probation at Friendship House and
revoked probation, stating that defendant had already been given two opportunities to
serve probation at different rehabilitation programs, which did not work out. The court
added: “I understand you are an intelligent person. I think you are a good person. But
you have for whatever reason anger within you that causes you to self destruct whenever
you come in contact with any kind of authority.”
The court imposed a four-year midterm sentence for the underlying offense,
ordered $300 restitution through Department of Corrections, and suspended a second
restitution fine of $300. The court awarded 712 days credit for time served, consisting of
356 days of actual custody credits and 356 good-conduct credits.
This timely appeal followed.
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DISCUSSION
Neither appointed counsel nor defendant has identified any issue for our review.
Upon our own independent review of the record, we agree none exists. (Wende, supra,
25 Cal. 3d 436.) The trial court revoked defendant’s probation after she admitted
violating its terms and conditions by testing positive for methamphetamine and by failing
to keep in contact with the probation department. At this point, defendant had twice-
failed to comply with court-ordered treatment.
The record reflects that defendant was represented at all relevant times by counsel,
and that she freely and voluntarily admitted the underlying violations in open court after
being advised by the trial court of the legal consequences. Under these circumstances,
we conclude the trial court’s decision to revoke probation and reinstate the sentence
based upon defendant’s admitted violations of its terms and conditions was proper. (See
People v. Segura (2008) 44 Cal. 4th 921, 932 [“During the period of probation, the court
may revoke, modify, or change its order suspending imposition or execution of the
sentence, as warranted by the defendant’s conduct. ([Pen. Code] §§ 1203.2, 1203.3)”].)
Thus, having ensured defendant has received adequate and effective appellate
review, we affirm the trial court’s judgment. (Kelly, supra, 40 Cal.4th at pp. 117-119;
Wende, supra, 25 Cal. 3d 436.)
DISPOSITION
The judgment is affirmed.
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_________________________
Reardon, J
We concur:
_________________________
Streeter, J.
_________________________
Ruvolo, P.J.
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