Filed 6/16/15 P. v. Jones CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                          SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




THE PEOPLE,                                                                    B256119

          Plaintiff and Respondent,                                            (Los Angeles County
                                                                               Super. Ct. No. BA375742)
          v.

HERNANDO JONES,

          Defendant and Appellant.



          APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur Jean, Jr., Judge. Affirmed.
          Bird & Bird and Karen Hunter Bird, under appointment by the Court of
Appeal, and Hernando Jones, in pro. per., for Defendant and Appellant.
          No appearance for Plaintiff and Respondent.

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          Hernando Jones appeals a judgment after a contested probation violation hearing.
His appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, raising
no issues, and appellant filed a supplemental letter brief. We find no arguable issues and
affirm.


                      FACTS AND PROCEDURAL BACKGROUND
          In 2010, appellant pled no contest to possession of a controlled substance (Health
& Saf. Code, § 11350, subd. (a)) and admitted two first-degree residential burglary
convictions, which qualified as prior strike convictions under the Three Strikes law (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court ordered that defendant
complete a one-year live-in drug treatment program, after which he would be sentenced
to probation with credit for time served. In 2011, imposition of sentence was suspended,
and appellant was placed on probation for three years with credit for the one-year
program he had completed. Probation was revoked in 2014 after appellant was arrested
and charged with misdemeanor annoying or molesting a child under 18 (Pen. Code,
§ 647.6) in case No. 3AV06746. The probation violation hearing was conducted
concurrently with the jury trial on the misdemeanor charge.
          According to his trial testimony, the victim, M.W., was 17 years old at the time of
the offense in October 2013. Appellant, whom M.W. never had seen before, pulled in
front of him as M.W. was crossing the street from a transportation center to his high
school. Appellant asked M.W. where he was going. M.W. responded he was going to
school. Appellant then offered, “Why don’t you come with me with your fine self.”
M.W. continued on to the school, where he checked his schedule; he then went back to
buy food from the vending machines at the transportation center. Appellant was there,
and when their eyes met, M.W. walked to the restroom, hid in a stall, and locked the
door. Appellant followed him into the restroom pushed the stall door, and said, “I


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thought you were going to school,” and “Give me three dollars and I will make you feel
good.” M.W. threw a dollar bill over the stall door, hoping appellant would go away.
Although he heard other people enter the restroom, M.W. did not call out for help. He
left the restroom 10-15 minutes after entering. At school, M.W. talked to a friend and
contacted school officials to report the incident.
          Surveillance video captured M.W. entering the restroom, followed by appellant.
A couple more people entered and exited before M.W. came out, followed by appellant
eight seconds later. The investigating officer mistakenly did not preserve video clips that
showed the encounter in the crosswalk, as well as appellant’s walking around the
transportation center and entering and exiting the lobby and restroom before M.W.’s
return.
          The court denied a continuance to allow the defense to subpoena an uncooperative
witness, about whom information had been disclosed during trial. It also denied
appellant’s motion for acquittal under Penal Code section 1118.1. In closing argument,
defense counsel challenged M.W.’s credibility, suggesting he met appellant in the
bathroom on purpose for some unknown reason. Defense counsel also challenged the
investigating officer’s failure to preserve all surveillance video clips.
          Before the jury returned a verdict on March 14, 2014, the court found appellant
had violated his probation. It struck one of his two prior strike convictions and sentenced
him to a high term of 18 months in prison under Penal Code section 664, doubled to 36
months. Appellant was awarded 689 days of credit, which consisted of credit for the
drug program he had completed in 2011, plus 162 days of custody credit and 162 days of
work credit. The jury then found appellant guilty on the misdemeanor charge. The court
sentenced him to a concurrent year in jail for the misdemeanor. In case No. B256119,
appellant filed a notice of appeal from “the judgment rendered on March 14, 2014,”
“[f]ollowing conviction at trial.”


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         At a subsequent hearing on May 22, 2014, the court acknowledged it had
incorrectly treated appellant’s 2010 possession conviction as an attempt under Penal
Code section 664. It doubled the high term of three years for a total of six years and
awarded 829 days in credit, including additional custody and work credit for the period
after the original sentencing date. On June 2, 2014, appellant moved for a sentence
modification on the ground that his prior strike convictions could not be used for
sentencing purposes because they must have been stricken when he originally was
sentenced to probation, even though the record did not reflect they were. The court
denied the motion. Appellant filed a notice of appeal in case No. B256647, captioned
“PROBATION VIOLATION,” which contested “the judgment rendered on May 22,
2014.”
         We consolidated case No. B256647 with case No. B256119, on the representation
of appellant’s appointed counsel that both appeals challenged the judgment on the
probation violation. We also granted appellant’s petition for writ of mandate in case No.
B257720, which sought to compel the Appellate Division of the Superior Court to accept
his late appeal from the misdemeanor conviction.


                                       DISCUSSION
         We lack jurisdiction to consider issues related to the trial on the misdemeanor
charge and may consider only issues related to the judgment on the probation violation.
(People v. Nickerson (2005) 128 Cal.App.4th 33, 36 [Court of Appeal has jurisdiction
over felony appeals; misdemeanor appeals are within jurisdiction of appellate divisions of
superior courts]; People v. Shoup (2001) 89 Cal.App.4th 420, 421–422 [striking briefs
related to trial of misdemeanor case because court had jurisdiction only to consider
felony probation revocation].)




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       The trial court has broad discretion to revoke probation based on facts showing a
willful violation of the terms and conditions of probation. (People v. Galvan (2007) 155
Cal.App.4th 978, 982.) The procedural and evidentiary rules are relaxed at probation
revocation proceedings, and the burden of proof is prepondenrance of the evidence.
(Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60–61.) Our review of a probation
revocation decision is deferential because circumstances often may justify revoking
probation even if they do not warrant a conviction. (People v. Urke (2011) 197
Cal.App.4th 766, 773.) As a condition of probation, appellant was required to obey all
laws. The evidence adduced at trial supported the court’s conclusion that appellant
violated his probation, regardless of whether it was sufficient to support his misdemeanor
conviction.
       In his letter brief, appellant complains about the six-year sentence the court
imposed on May 22, 2014. He claims he was improperly resentenced to “3 years double-
up 6 years with 80%. I have never done 80% since I been doing time.1 All I want is my
half time back, decrease my sentence, or release me. All this goes back to 2010. . . .”
       The three-year sentence the court originally imposed in March 2014 was based on
the admittedly mistaken conclusion that appellant’s 2010 conviction was punishable as an
attempt under Penal Code section 664, rather than under Penal Code section 18. (People
v. Allan (1996) 49 Cal.App.4th 1507, 1516 [felony possession of controlled substance
(Health & Saf. Code, § 11350, subd. (a)) is subject to sentence range of 16 months to 3
years (Pen. Code, § 18)].)
       Appellant essentially contends he should not have been sentenced as a second
striker. The court was not precluded from imposing such a sentence. If at the time it


       1We assume that the reference to “80%” is a reference to the 20 percent limit on
postsentence prison worktime credits under the Three Strikes law. (People v. Buckhalter
(2001) 26 Cal.4th 20, 32.)


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grants probation the court suspends execution of the sentence it imposes and the sentence
is not timely challenged, then the court may not change the originally imposed sentence
upon revoking probation; however, if it suspends imposition of a sentence, the court
ultimately may select any originally available sentencing option. (People v. Howard
(1997) 16 Cal.4th 1081, 1084.) There is no indication that the court struck both of
appellant’s prior strikes or imposed a suspended three-year sentence either in 2010 or
2011. In 2010, when it ordered appellant to complete a drug program, the court warned
he would be subject to a three-year “minimum,” not maximum, if he failed. In 2011, the
court imposed a three-year probation but suspended imposition of a sentence. (Pen.
Code, § 1203.1, subd. (a) [probation may continue for term not exceeding maximum
possible sentence].) Because the court did not actually impose a sentence when it granted
probation, it was free to sentence appellant under all available options, including as a
second striker.
       Appellant also suggests that since he had to serve one year in county jail for his
misdemeanor conviction, it was unfair to punish him twice. Appellant was not punished
twice for the same crime because the sentence imposed upon revocation of probation was
for his 2010 felony conviction, not his 2014 misdemeanor conviction.
       We have independently reviewed the record for potential error under People v.
Kelly (2006) 40 Cal.4th 106, and find no arguable issues.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          EPSTEIN, P. J.
We concur:



     MANELLA, J.



     COLLINS, J.




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