Filed 9/24/13 P. v. Sanchez CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



THE PEOPLE,

         Plaintiff and Respondent,                                       E058134

v.                                                                       (Super.Ct.No. FSB1201364)

GERARDO SANCHEZ,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed.

         Paul S. Berger, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                             STATEMENT OF THE CASE

       On April 23, 2012, an information charged defendant and appellant Gerardo

Sanchez with attempted second degree robbery (Pen. Code, §§ 664, 211, count 1) and

assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4),

count 2). The information also alleged that count 1 was a serious and violent felony.

(Pen. Code, §§ 1192.7, subd. (c), 667.5, subd. (c).)

       On June 15, 2012, upon motion of the People, a prior prison term allegation was

added to the information. (Pen. Code, § 667.5, subd. (b).) Defendant entered into a

negotiated plea agreement, pleading guilty to count 1 (attempted robbery) and admitting

the prior prison term allegation. In exchange, all other counts and allegations were to be

dismissed at the time of sentencing. Defendant was advised of and waived his

constitutional rights.

       At the sentencing hearing on July 16, 2012, the trial court stated that defendant’s

conviction justified probation only if unusual circumstances were present. Defense

counsel argued that probation was warranted in light of defendant’s youth and lack of a

significant prior criminal record. (See Cal. Rules of Court, rule 4.413(c)(2)(C).)

       The trial court agreed that defendant had indicated a willingness to comply with

probation and that he was “relatively young.” Therefore, the trial court found unusual

circumstances applied and placed defendant on probation. The court then imposed a

suspended four-year prison sentence in accordance with the terms of the plea

agreement—the upper term of three years for attempted robbery, plus a consecutive one-

year enhancement for the admitted prior prison term allegation. The court suspended

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execution of defendant’s sentence and placed him on three years’ felony probation under

the terms and conditions specified in the probation report. Defendant was required to

serve 365 days in county jail. He received credit for time served consisting of 110 actual

days plus conduct credits pursuant to Penal Code section 4019. The court also imposed

various fees and fines.

       On October 30, 2012, a petition to revoke defendant’s probation was executed.

The petition alleged that defendant had violated his probation by failing to comply with

Term Nos. 3, 4, and 8. The petition stated that defendant failed to report to probation for

his scheduled meeting on October 1, 2012, and that subsequent compliance checks

revealed that defendant had moved without notifying his probation officer.

       On November 1, 2012, defendant appeared in court and denied the allegations of

the petition. The trial court revoked defendant’s probation and held him in custody

pending a revocation hearing.

       A contested probation revocation hearing under People v. Vickers (1972) 8 Cal.3d

451 (Vickers) was set in January 2013, and a supplemental probation officer’s report

dated December 4, 2012, was submitted to the court recommending that defendant’s

probation remain revoked and that the previously suspended prison sentence be executed.

After several continuances, the Vickers hearing was held on February 4, 2013. At the

conclusion of the hearing, the trial court found that defendant had violated the terms of

his probation, specifically Term Nos. 3, 4, and 8. The matter was continued to February

20, 2013, to determine if defendant was amenable to supervised probation.



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       On February 20, 2013, the trial court revoked defendant’s probation and imposed

the previously suspended four-year state prison sentence. The court awarded defendant a

total of 466 days of credit for time served, consisting of 233 actual days and 233 days of

conduct credit under Penal Code section 4019.

       On February 21, 2013, defendant filed a timely notice of appeal. Defendant

indicated that “[t]his appeal is after a contested violation of probation.” (Pen. Code,

§ 1237, subd. (b).)

                               STATEMENT OF FACTS1

       Defendant’s terms of probation included the following: “Report to the Prob[ation]

officer in person immediately upon release from custody and thereafter once every

fourteen (14) days or as directed” (Term No. 3); “[c]ooperate with the probation officer

in a plan of rehabilitation and follow all reasonable directives of the probation officer”

(Term No. 4); and “[k]eep the probation officer informed of place of residence and

cohabitants and give written notice to the probation officer twenty-four (24) hours prior

to any changes. Prior to any move provide written authorization to the Post Office to

forward mail to the new address” (Term No. 8).

       Defendant’s probation officer testified that defendant had failed to report for their

first scheduled appointment on October 1, 2012. On October 3, the officer conducted a

compliance check at defendant’s address listed in the probation file. Defendant’s

younger brother answered the door and informed the officer that defendant no longer

       1 Because this appeal is after a contested violation of probation, the facts of the
underlying offense are not relevant to this appeal.

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lived at the residence. When the officer inquired as to whether defendant’s belongings

were still at the residence, the boy pointed to the living room closet and stated that

defendant had taken his belongings. Defendant had not notified the probation officer that

he had moved from his registered address.

        The following day, defendant’s biological mother spoke with the probation officer

by telephone and stated that defendant had moved out of the house. The mother said that

defendant was “barely staying there,” that she had let him use her address for probation,

but that he had moved all his things out, and that she believed he was staying with his

girlfriend. A few days later, defendant’s foster mother contacted the probation officer

and advised the officer that she believed defendant was staying with his girlfriend.

        On November 27, 2012, the probation officer located defendant in jail. Defendant

told her that he had moved out of his mother’s house because he and his mother were not

getting along, and that he had moved in with his girlfriend. When the officer advised

defendant that he had a duty to notify the probation officer of his change of address, he

acknowledged his obligation and did not deny that he had failed to do so. Defendant also

admitted that he had missed the scheduled appointment on October 1, 2012. Defendant

stated that during the time he had been living with his girlfriend, he worked and took the

bus to work. He had also been staying with various friends to facilitate his commute to

work.

        Defendant’s biological mother testified that from the end of September to the first

part of October 2012, defendant worked “at a pallet yard in Montclair” and resided with

her in San Bernardino, unless his work schedule made it too difficult for him to do so.

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Defendant slept on the sofa. She also stated that defendant had a difficult commute,

which required him to walk, as well as take a train and bus to get to work. She added that

defendant kept some of his belongings in her living room. Under cross-examination,

defendant’s mother denied telling the probation officer that her son had moved out.

       One of defendant’s coworkers testified that he had worked with defendant since

July 2012. The coworker testified that defendant was “a very hard worker [and] he

would get there on time and do what needed to be done.” He further stated that defendant

was a “valued” employee and was welcome “back to work any time.”

       At the conclusion of the hearing, the court stated that defendant had clearly

violated his probation by failing to report and cooperate with his probation officer. The

court, however, stated, “[w]hether or not he’s amenable [to probation reinstatement] is a

different question and a tougher one, perhaps.” Defense counsel claimed that defendant

was working to pay off his court-imposed fines, but the court interjected that there was no

evidence that the fines were being paid. Defense counsel continued that defendant was

working, was “willing to commit himself to a schedule,” and had “[a]ll of the requisite

tools . . . to succeed on probation.” Defense counsel asked that defendant be given a

second chance.

       In opposition, the prosecutor argued that defendant had shown an utter disregard

for complying with the terms of his probation, there had not been any indication that

defendant had made a single payment on his restitution, and defendant’s reasons for

moving around were conflicting.



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       The court found defendant to be in violation of Term Nos. 3, 4, and 8 of his

probation and continued the hearing to February 20, 2013, in order to “reread the

probation report and consider the testimony offered” at the hearing.

       The probation officer stated in the report: “The defendant’s criminal history

includes felony convictions, prior probation grants, prior prison commitments and

probation and parole violations. He was completely aware of the expectations of his

probation grant and of the consequences should he fail to cooperate with the terms and

conditions of probation.” Despite defendant’s expressions of interest in turning his life

around, “defendant appears to be very irresponsible and misguided,” and had “almost

exhausted his local custody time.” The officer recommended that defendant’s probation

remain revoked and that his four-year prison sentence be reinstated.

       On February 20, 2013, the trial court announced its sentencing decision. The court

stated that it had considered several factors in this case and had weighed the factors both

in favor of and against reinstating probation. The court indicated that if defendant had

come in with a clean record, it might be inclined to give him a second chance. However,

defendant had previously been on probation and had admitted to serving a prior prison

term. Those facts, combined with the seriousness of the offense, convinced the trial court

that the previously suspended sentence should be executed.

                                       ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

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the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have conducted an independent review of the record and find no arguable issues.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               McKINSTER
                                                                                Acting P.J.

We concur:



RICHLI
                          J.



KING
                          J.




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