People v. Floyd CA2/4 ( 2014 )

Filed 12/16/14 P. v. Floyd 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B255150
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA078742)
v.
ROBEAR WALLACE FLOYD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia
L. Ulfig, Judge. Affirmed.
Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant Robear Wallace Floyd appeals from the trial court’s order revoking
probation and ordering him to serve a two-year state prison sentence, execution of which
had been previously suspended. (Pen. Code, §1203.2.)1 Defendant’s counsel filed an
opening brief that raised no issues and requested independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
FACTUAL AND PROCEDURAL HISTORY
Motor Vehicle Charge
On November 12, 2013, the Los Angeles County District Attorney’s office filed
an information charging defendant with receiving stolen property, a motor vehicle, in
violation of section 496d, subdivision (a). The information further alleged: (1) defendant
previously had been convicted of attempted robbery (sections 664 and 211), a serious or
violent felony, and that defendant therefore was subject to sentencing pursuant to sections
667, subdivisions (b)-(j), and 1170.12; and (2) defendant had three prior convictions for
felony offenses for which he had served a prison term and had not remained free of
prison custody for a period of five years before commission of the current offense
(§ 667.5, subd. (b)).
On December 17, 2013, the information was amended and defendant was charged
with count two, unlawfully driving or taking a vehicle, in violation of Vehicle Code,
section 10851, subdivision (a). The same day, following advisement and waiver of
defendant’s rights, defendant entered a plea of nolo contendere to count two. The court
accepted the plea and sentenced defendant to a two-year prison term, with the execution
of the sentence suspended and a three-year term of probation. The court awarded 80 days
of presentence credit to defendant and ordered him to pay various fines and assessments.
1
Unless otherwise indicated, all further statutory references are to the Penal Code.
2
Violation of Probation
On January 2, 2014, defendant was found in possession of methamphetamine and
was arrested. The court thereafter summarily revoked defendant’s probation and set a
probation violation hearing. Defendant’s motion to have his case returned to the original
sentencing department was heard and denied.
The court held a probation violation hearing on March 24, 2014. Officer Amores
of the Los Angeles Police Department testified that he was on patrol with his partner on
the evening of January 2, 2014, when he saw defendant sitting in front of a closed
business with his head down. Officer Amores believed defendant was either asleep or
trespassing on the property, and therefore approached and engaged defendant. Defendant
gave his name and birth date and the officers discovered that he was on formal probation.
Defendant consented to be searched (a condition of his probation) and the officers
recovered a clear plastic bag from defendant’s wallet as well as a hypodermic needle
from inside defendant’s sock. Officer Amores, a court-qualified narcotics expert,
testified that the plastic bag contained a substance that resembled methamphetamine.
The officers then placed defendant under arrest. After transporting defendant to the
police station, Officer Amores conducted a preliminary test of the substance recovered
from defendant, and found that it “tested positive for meth.”
At the conclusion of the hearing on March 24, 2014, the court found defendant in
violation of probation and ordered him to serve his previously suspended sentence of two
years in state prison. The court awarded defendant 192 days of presentence credit and
ordered payment of the previously-imposed fines and assessments. Defendant timely
appealed.
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DISCUSSION
As noted above, Defendant’s court-appointed counsel filed a brief that raised no
issues and asked this court to independently review the record. (Wende, supra, 25 Cal.3d
at p. 436.) On August 12, 2014, we sent defendant a letter informing him of the nature of
the brief that had been filed and advising him that he had 30 days to file a supplemental
brief setting forth issues he wished this court to consider. We received a supplemental
letter from defendant on August 21, 2014, raising the issues discussed below.
A. Defendant’s Contentions
First, defendant asserts that he was tried for the same case in two different
counties and sentenced twice for the same crime—violation of Vehicle Code, section
10851, subdivision (a). Neither contention is correct. The proceedings for defendant’s
vehicle theft case, number PA078742, were held at the San Fernando courthouse in Los
Angeles County. The subsequent proceedings for defendant’s probation violation, under
the same case number, were held in the same courthouse.2 Following his plea of nolo
contendere to the violation of Vehicle Code, section 10851, subdivision (a), defendant
was sentenced on December 17, 2013, to a two-year prison term, with the execution of
the sentence suspended and a three-year term of probation. Then, on March 24, 2014, the
court found that defendant had violated his probation and therefore terminated probation
and ordered defendant to serve his (previously-suspended) two-year prison sentence.
Second, defendant’s letter asks how he could be found guilty “with No hard
evidence” or “on just some one[‘]s statement.” Defendant’s questions appear to
challenge the sufficiency of the evidence supporting the court’s finding that defendant
violated his probation by possessing methamphetamine. The standard of proof in a
probation revocation proceeding is proof by a preponderance of the evidence. (People v.
Rodriguez (1990) 51 Cal.3d 437, 446.) We review a probation revocation decision
2
While the details of defendant’s methamphetamine case, number LA076412, are
not included in the record before us, it appears that this case was also scheduled to be
heard in Los Angeles County, at the Van Nuys courthouse.
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pursuant to the substantial evidence standard of review [citation], and great deference is
accorded the trial court’s decision, bearing in mind that ‘[p]robation is not a matter of
right but an act of clemency, the granting and revocation of which are entirely within the
sound discretion of the trial court. [Citations.]’ [Citation.]” ( People v. Urke (2011) 197
Cal.App.4th 766, 773.)
Here, the court heard testimony from Officer Amores, a court-qualified narcotics
expert, that he found on defendant’s person a plastic bag containing a substance that
resembled methamphetamine, as well as a hypodermic needle of the type used to inject
methamphetamine, and that a subsequent chemical test confirmed that the substance was
methamphetamine. The court further noted that there was “no evidence that the
defendant had a prescription for the syringe that he possessed.” Notably, no objections to
this evidence were raised during the probation violation hearing. We conclude the trial
court did not err in finding that the live testimony of Officer Amores, the arresting
officer, at the probation violation hearing was sufficient to establish that defendant
violated his probation.
Finally, defendant asks why he never received discovery and why the motions
filed by his counsel were denied. Defendant has provided no specific allegations of error
with respect to either discovery or any defense motions, and our review of the record
reveals none.
B. Wende Review
In addition to considering the issues above, we have independently reviewed the
entire record. We are satisfied that defendant’s attorney has fully complied with his
responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at
441.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
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