Filed 6/27/14 P. v. Yang CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                          G049154

         v.                                                             (Super. Ct. No. 11CF0033)

HAHN WOO YANG,                                                          OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Nancy S. Brandt, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.




                                                      *      *      *
THE COURT: *


                Hahn Woo Yang1 appeals from an order of the trial court finding him in
violation of his probation and sentencing him to two years in state prison as a result of his
conviction in 2011. Hahn filed a timely notice of appeal, and this court appointed
counsel to represent Hahn in the appeal. Pursuant to People v. Wende (1979) 25 Cal.3d
436, counsel filed a brief which sets forth the facts of the case, and although counsel does
not argue against her client, counsel has advised the court no issues were found to argue
on appellant’s behalf. Hahn was given the opportunity to file written argument on his
own behalf, but he has not availed himself of the opportunity. (People v. Kelly (2006) 40
Cal.4th 106.)
                We have examined the entire record and have found no arguable issue.
(People v. Wende, supra, 25 Cal.3d 436.) Accordingly, we affirm the judgment.


                    FACTUAL AND PROCEDURAL BACKGROUND
                On March 28, 2011, a jury convicted Hahn of second degree robbery,
second degree burglary, and receiving stolen property.2 At the sentencing hearing the
following month, imposition of sentence was suspended and Hahn was placed on four
years probation on condition, inter alia, that he “[v]iolate no law.” On January 3, 2013,
Hahn’s probation was ordered revoked as a result of a new misdemeanor case charging
Hahn with elder abuse against his father, and a petition was filed alleging a fourth




*       Before Rylaarsdam, Acting P. J., Ikola, J., and Thompson, J.
1       Because appellant and his father share the same last name, we refer to appellant by
his first name solely to enhance clarity and readability. No disrespect is intended.
2       Hahn’s conviction for receiving stolen property was reversed on appeal. (People
v. Hahn Woo Yang (May 7, 2012, G045308) [nonpub. opn.].)

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probation violation since 2011. Although the misdemeanor case was dismissed the
following month,3 the offense was still used as the basis for revoking Hahn’s probation.
              During pretrial proceedings, the court denied Hahn’s two Marsden4
motions to remove the Office of the Public Defender, and granted his Faretta5 request to
represent himself at the probation violation hearing.
              At the hearing on the probation violation, Hahn’s father, Mr. Yang, testified
that on December 31, 2012, he drove with his son Hahn to Irvine City Hall so that Hahn
could obtain a bicycle permit. According to Mr. Yang, Hahn had asked him for $30 to
obtain the bicycle permit. When Mr. Yang went inside city hall to inquire about the cost
of the license, he was advised by an officer that the bicycle license is free. According to
Mr. Yang, while he was driving home from city hall, the discussion with Hahn about the
cost of the bicycle license escalated into an argument. While being questioned by his son
on cross-examination, Mr. Yang said, “[w]hile we were having [a] conversation you got
real mad and you start striking me.” Mr. Yang provided additional detail about the attack
and said, “At that time my hands were on the steering wheel. And then my son was
actually sitting on the passenger side. And with his arm, he struck me at least three to
five times. Because of it, I couldn’t really drive. Because of that, I stopped my vehicle
on the side as soon as I could. After I made a stop, I used my cell phone to make the call
[to police].” Mr. Yang testified that as a result of being hit by Hahn, he almost caused an
accident and just missed hitting two cars.
              During his testimony, Mr. Yang acknowledged that he was afraid of his son
Hahn, who was described in the record as six feet, one inch, and weighed approximately
250 pounds. By comparison, Mr. Yang testified that he was 73 years old, weighed


3     On the court’s own motion, the court takes judicial notice of the docket in Orange
County misdemeanor case No. 13HM00017. (Evid. Code § 459.)
4     (People v. Marsden (1970) 2 Cal.3d 118.)
5     (Faretta v. California (1975) 422 U.S. 806.)

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approximately 143 pounds, stood five feet, six inches, had a pacemaker installed in his
chest, and took medication for his heart ailment.
               Hahn testified on his own behalf and denied his father’s account of events
in the car. Hahn explained that at all times he was defending himself against his father
and he described two incidents that caused him to call 911. Regarding the first incident,
Hahn testified that after the altercation with his father in the car, his father pushed and
attacked him when they were near an Albertsons supermarket. According to Hahn, the
second incident took place after they returned home and he called 911 because he felt in
danger for his life.
               At the conclusion of the hearing, the court found Hahn in violation of the
terms of his probation. The court explained that it found Mr. Yang to be a believable
witness and did not find Hahn to be credible. The court said it found Hahn’s claim that
he felt in danger from his father to be “ridiculous” and did not “believe a lot of what
[Hahn] said.” As a result of the probation violation, Hahn was sentenced to two years in
state prison, with a total of 730 days of actual and conduct credits.


                                       DISCUSSION
               Following the guidelines in People v. Wende, supra, 25 Cal.3d 436, we
have reviewed counsel’s brief and the entire appellate record and discern no arguable
issue. In the brief, counsel identifies two potential issues for review: (1) whether there
was substantial evidence under the preponderance of evidence standard that Hahn
violated the “[v]iolate no law” term of his probation; and (2) whether Hahn was properly
granted in propria persona status at the probation revocation hearing.
               The elements for simple battery require proof that Hahn willfully touched
his father in a harmful or offensive manner, and that he was not acting in self-defense or
in defense of another. (Pen. Code, § 242; CALCRIM No. 960 (2014 ed.) p. 777.) In this
case, there was substantial evidence in the record based on Mr. Yang’s testimony, which

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the court found to be credible, that Hahn battered his father when he struck him several
times while driving home from city hall.
              Citing to Indiana v. Edwards (2008) 554 U.S. 164, counsel also raises the
possible issue of whether Hahn was properly granted in propria persona status to
represent himself at the probation violation hearing. The issue is no doubt based on the
court’s reading of the probation officer’s assessment of Hahn which the court read in
open court and said, “‘unless the probationer gets help with his anger and mental illness,
this type of behavior will continue and someone will get hurt.’” The trial court concurred
with the probation officer’s evaluation and said, “I agree 100 percent.”
              There are no facts in the record that the court or counsel doubted Hahn’s
mental competence or that Hahn suffered from a “severe mental illness” to the point
where he could not “carry out the basic tasks needed to present [his] defense without the
help of counsel.” (People v. Johnson (2012) 53 Cal.4th 519, 530.) Without evidence that
Hahn suffered from a severe mental illness, the trial court was required to allow Hahn to
represent himself once the other requirements for a successful Faretta motion were
satisfied on March 25, 2013.


                                     DISPOSITION
              The order revoking probation and the sentence imposed are both affirmed.




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