People v. Bounthavy CA5 ( 2015 )


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  • Filed 9/2/15 P. v. Bounthavy 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
    F069056
    Plaintiff and Respondent,
    (Super. Ct. Nos. F09906439 &
    v.                                                                F10902975)
    PAVID AM BOUNTHAVY,
    OPINION
    Defendant and Appellant.
    THE COURT*
    APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
    Levis, Judge.†
    J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Office of the Attorney General, Sacramento, California, for Plaintiff and
    Respondent.
    -ooOoo-
    *   Before Poochigian, Acting P. J., Franson, J. and Peña, J.
    †
    Retired Judge of the Fresno Superior Court assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    INTRODUCTION
    Appellant/defendant Pavid Am Bounthavy was placed on probation after he
    pleaded guilty to narcotics and firearm offenses. After two violations, the court revoked
    probation and sentenced him to prison. On appeal, his appellate counsel has filed a brief
    that summarizes the facts with citations to the record, raises no issues, and asks this court
    to independently review the record. (People v. Wende (1979) 
    25 Cal.3d 436
     (Wende).)
    We affirm.
    FACTS
    Case No. F09906439
    On November 10, 2009, defendant was found in possession of Ecstasy, a
    controlled substance.
    On November 13, 2009, a complaint was filed in case No. F09906439, charging
    defendant with count I, felony possession of a controlled substance (Health & Saf. Code,
    § 11377, subd. (a)).
    On or about November 16, 2009, defendant pleaded guilty and was placed on
    formal probation for two years. He was ordered to enroll, attend, and complete a drug
    treatment program pursuant to Proposition 36 (Pen. Code, § 1210.1, subd. (a)).1
    Defendant’s performance on Proposition 36 probation was poor. He failed to
    submit to weekly drug tests and had excessive absences from the drug treatment program.
    On February 11, 2010, he was terminated from the treatment program for failing to
    complete group sessions.
    Case No. F10902975
    Shortly before midnight on June 10, 2010, officers conducted a traffic stop on a
    vehicle in Fresno. Defendant was sitting in the right rear seat. An officer recognized
    defendant as a member of the Laos Blood gang based on prior contacts. The officer
    1   All further statutory citations are to the Penal Code unless otherwise indicated.
    2.
    asked defendant if he was on probation and subject to being searched, and defendant said
    yes. A semiautomatic handgun was found in the area where defendant was sitting. The
    weapon was wrapped in a red bandana and loaded with seven rounds. As he was being
    arrested, defendant cursed and spontaneously said, “I’m going through this again.”
    On June 14, 2010, a complaint was filed in case No. F10902975, charging
    defendant with count I, possession of a firearm by a felon (§ 12021, subd. (a)(1)).
    Defendant later told the probation officer that they were going to purchase marijuana
    when the police stopped them, he took the blame for the gun, and he did not hang out
    with the same people anymore.
    Plea and Reinstatement on Probation
    On June 22, 2010, defendant pleaded guilty in case No. F10902975 and admitted
    the probation violation in case No. F09906439. The court terminated defendant’s
    participation in the section 1210.1 drug treatment program.
    On September 29, 2010, the court terminated defendant’s probation under
    Proposition 36. However, the court reinstated defendant on probation in case
    No. F09906439 pursuant to section 1203, and extended the period for one year subject to
    certain terms and conditions, including service of 210 days in jail. As for case
    No. F10902975, defendant was placed on formal probation for two years. Defendant
    failed to maintain contact with probation.
    Subsequent Probation Violations
    On January 24, 2011, defendant was arrested for a misdemeanor violation of
    section 148.9, subdivision (a). He was released but repeatedly failed to appear and bench
    warrants were issued.
    On August 8, 2012, the court found defendant violated probation in both cases for
    being out of contact with probation and failing to appear. In each case, the court
    reinstated and extended probation for two years, and ordered defendant to serve 210 days
    in jail.
    3.
    In November 2012, defendant failed two drug tests. He did not maintain contact
    with probation and repeatedly failed to appear at hearings. A bench warrant was issued.
    He was taken into custody in March 2013, and the court revoked probation.
    Sentencing
    On February 28, 2014, defendant admitted violating probation in both cases based
    on a positive drug test. The court sentenced him to the upper term of three years in
    prison in case No. F10902975 and a concurrent term of two years in case No. F09906439.
    On March 12, 2014, defendant filed a timely notice of appeal in both cases. He
    requested and received certificates of probable cause.
    DISCUSSION
    As noted above, defendant’s counsel has filed a Wende brief with this court. The
    brief also includes the declaration of appellate counsel indicating that defendant was
    advised he could file his own brief with this court. By letter on July 24, 2014, we invited
    defendant to submit additional briefing. To date, he has not done so.
    After independent review of the record, we find that no reasonably arguable
    factual or legal issues exist.
    DISPOSITION
    The judgment is affirmed.
    4.
    

Document Info

Docket Number: F069056

Filed Date: 9/3/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021