People v. Choi CA2/5 ( 2016 )

Filed 6/24/16 P. v. Choi CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B267737
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 5PR03876)
v.
ERNEST JIM CHOI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William L.
Sadler, Commissioner. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Ernest Jim Choi, appeals from a postjudgment order. Defendant was
convicted in August 2013 after pleading nolo contendere to stalking in violation of Penal
Code section 646.9.1 He was subsequently released from state prison subject to
postrelease community supervision. (§ 3450 et seq.) On June 23, 2015, a revocation
petition was filed. (§§ 1203.2, subd. (b)(1), 3455.) On September 24, 2015, the trial
court found defendant in violation of the conditions of his release. The trial court
revoked and reinstated postrelease community supervision with modified conditions. We
affirm the order. During the revocation hearing, the parties at times referred to defendant
being on “probation.” He was not, however, on probation.
II. DISCUSSION
A. The Wende Brief
We appointed counsel to represent defendant on appeal. After examining the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested this court independently review
the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See
Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On April 11, 2016, we advised
defendant that he had 30 days within which to personally submit any contentions or
arguments he wished us to consider. After conducting our mandatory review of the
record, we ordered the filing of the normal record on appeal because of an apparent error
in the calculation of presentence conduct credits. We have examined the entire record
and are satisfied appointed appellate counsel has fully complied with his responsibilities.
1 Further statutory references are to the Penal Code unless otherwise noted.
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B. Substantial Evidence Supported the Violation Order
Substantial evidence supported the trial court’s violation finding. (Cf. People v.
Arreola (1994) 7 Cal.4th 1144, 1161 [probation revocation decision reviewed for
substantial evidence]; People v. Urke (2011) 197 Cal.App.4th 766, 773 [same].) The
terms and conditions of defendant’s supervision included permitting search of his
residence and complying with instructions by local supervision authorities. Defendant
refused to open his door when probation officers conducted a field visit on June 14, 2015.
Defendant also failed to report as instructed on June 15, 2015. Defendant had not
contacted the probation department since that time. The trial court did not abuse its
discretion when it revoked and reinstated supervision with modified conditions. (Cf.
People v. Catalan (2014) 228 Cal.App.4th 173, 179 [mandatory supervision]; People v.
Urke, supra, 197 Cal.App.4th 766, 773 [probation]; see People v. Rodriguez (1990) 51
Cal.3d 437, 443 [“‘the determination whether to grant or revoke probation is largely
discretionary’”], 445 [“[o]ur trial courts are granted great discretion in determining
whether to revoke probation”].)
C. Defendant’s Assertions
Defendant contends that as a condition of his plea he would be subject to parole
but not post-release community supervision. He also states in his letter brief that he “may
not” have entered into the plea if he had been advised otherwise. Defendant filed a
declaration in support of his motion to terminate supervision. Defendant’s declaration
does not support the claim on appeal that a condition of his plea was that he would not be
subject to postrelease community supervision. In a September 14, 2015 declaration,
defendant avers, “On August 1, 2013, I plead nolo contendere as part of a plea bargain
that assured me that I would not have to report to a parole or probation office upon
release from prison.” (Italics added.) Defendant also acknowledges that on February 5,
2014, he signed a “Notice and Conditions of Postrelease Community Supervision” form
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and indicated, “I have read, or have had read to me, and understand these conditions as
they apply to me.” In any event, release on parole versus postrelease community
supervision was not a negotiable term of defendant’s plea. As the Court of Appeal has
observed, “[Postrelease community supervision] does not change any terms of a
defendant’s sentence, but merely modifies the agency that will supervise the defendant
after release from [custody].” (People v. Jones (2014) 231 Cal.App.4th 1257, 1267; see
People v. Douglas (2015) 240 Cal.App.4th 855, 864-865.) Moreover, the Court of
Appeal has explained, “[Postrelease community supervision] conditions, like parole
conditions, are not a matter of choice, and there is no voluntary consent to the
conditions.” (People v. Jones, supra, 231 Cal.App.4th at p. 1267, fn. 8; see People v.
Douglas, supra, 240 Cal.App.4th at p. 865.)
Defendant further argues stalking is a serious felony making him ineligible for
postrelease community supervision. (§ 3451, subd. (b)(1).) That contention is without
merit. Stalking is not a serious felony. (§ 1192.7, subd. (c).) Defendant has not raised
any arguable contentions which would warrant setting aside any of the trial court’s
orders.
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III. DISPOSITION
The September 24, 2015 order revoking and reinstating postrelease community
supervision is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
BAKER, J.
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