Filed 11/12/15 P. v. Gomez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069791
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13907045)
                   v.

RICHARD ROMAN GOMEZ,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
         Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Detjen, J. and Peña, J.
       Richard Roman Gomez accepted a plea agreement wherein the trial court
sentenced him to a suspended eight-year prison term, and then placed him on probation to
allow him to complete a one-year inpatient substance abuse program. When Gomez left
the program after only six days, a petition was filed alleging he violated his probation.
The trial court found the allegations true and imposed the suspended prison sentence.
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
stating that after reviewing the record he did not find any arguable issues on appeal. By
letter dated October 7, 2014, we invited Gomez to identify any grounds he wished this
court to address. Gomez did not respond to our invitation.
       Our independent review of the record did not discover any arguable issues.
Accordingly we affirm the order finding Gomez violated his probation.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The complaint charged Gomez with possession of a controlled substance in
violation of Health and Safety Code section 11377, subdivision (a). The complaint also
alleged that Gomez (1) had one prior conviction that constituted a strike within the
meaning of Penal Code section 667, subdivisions (b) through (i), and (2) had served
seven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
       On March 7, 2014, Gomez pled no contest to count 1 and admitted a prior strike,
and seven prison priors pursuant to a plea agreement. Defendant signed a waiver of right
form thereby waiving his constitutional rights. At the sentencing hearing, the trial court
struck the strike prior, struck two prior prison term enhancements, and sentenced Gomez
to the upper term of three years, enhanced by five years for the Penal Code section 667.5,
subdivision (b) enhancements for a total prison term of eight years. The trial court then
suspended the sentence, and placed Gomez on three years’ probation which required
Gomez to enroll in an inpatient alcohol/drug treatment program at the Poverello House
Abuse Treatment Program (Poverello House), and spend one year in jail. As part of the
plea agreement Gomez waived all his presentence time credits. The trial court also

                                             2.
ordered Gomez be released from jail when bed space became available in the drug
treatment program.
       A petition alleging Gomez violated his probation was filed on July 18, 2014. The
petition alleged Gomez failed the Poverello House program, used narcotics while on
probation, and consumed alcohol while on probation.
       A contested hearing was held on the petition. The only witness to testify at the
hearing was probation officer Seen Syrisack. Syrisack explained that he was Gomez’s
probation officer, and the conditions of probation included alcohol and narcotics
restrictions, and participation in the Poverello House. Gomez violated those conditions
because he did not complete the Poverello House program, and based on the police
report, he admitted to police officers he violated the alcohol and narcotics restrictions.
The termination report from the Poverello House indicated that Gomez left the program
after six days because of a dispute with coworkers.
       Defense counsel admitted Gomez left the Poverello House program in violation of
the terms and conditions of his probation, but argued there was no admissible evidence
that Gomez had violated the alcohol and narcotics conditions of his probation.
       The trial court found Gomez had violated his probation. Gomez was thereafter
sentenced to the previously imposed sentence of eight years in prison. The trial court
denied Gomez’s request for a certificate of probable cause on August 7, 2014.
                                       DISCUSSION
       As stated above, appellate counsel filed a brief asserting he did not identify any
arguable issues in this case. We agree. The record establishes that Gomez was required
to participate in the Poverello House program as a condition of his probation. The
probation officer testified that Gomez had left the Poverello House program after only six
days. The probation officer’s testimony was sufficiently reliable to be properly admitted.
(People v. Maki (1985) 39 Cal.3d 707, 709.) Indeed, defense counsel admitted Gomez
had not completed the Poverello House program.

                                              3.
       Gomez has a lengthy criminal history which exposed him to numerous
enhancements. The trial court informed Gomez that any violation of his probation would
result in imposition of the eight-year sentence. The trial court ensured that Gomez
wanted to accept the plea agreement because his record indicated he would likely fail and
end up in prison for a longer sentence than offered by the People.1 Gomez stated he
understood the consequences of his failure to comply with the terms and conditions of
probation. Sufficient evidence established that he failed to complete the program, and
therefore violated his probation.
                                     DISPOSITION
       The order finding Gomez violated his probation is affirmed.




1      The prosecutor offered to permit Gomez to plead guilty to count 1 with imposition
of the midterm sentence (two years) doubled because of the strike prior for a total term of
four years.


                                            4.
