Opinion
A119715
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. CLARK THOMAS BREMNER, Defendant and Appellant.
Not to be Published
Defendant Clark Thomas Bremner appeals from a final judgment after the trial court revoked his probation and imposed a previously suspended sentence. Defendants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking us to independently review the record in order to determine whether it reveals any arguable issues. Defendant has also submitted a supplemental letter outlining his view of the case. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 13, 2006, the District Attorney for San Mateo County filed an amended information in eight counts charging defendant, inter alia, with various sexual offenses against his spouse. On November 16, 2006, defendant filed a waiver of rights for entry of plea. Following a colloquy with defendant, the trial court found that he made a knowing, voluntary and intelligent waiver of his rights. Thereafter, the trial court accepted defendants no-contest pleas and found him guilty on two misdemeanor counts, spousal battery in violation of Penal Code, section 243, subdivision (e)(1), and dissuading his spouse from making a complaint, in violation of Penal Code, section 136.1, subdivision (b)(2). The remaining counts were dismissed.
At a sentencing hearing on December 15, 2006, the trial court suspended the imposition of sentence on both counts and admitted defendant to three years of supervised probation. As conditions of probation, defendant was ordered to comply with any existing restraining orders and have no contact with his spouse and minor daughter until otherwise permitted by order of the family court. Defendant was further ordered to enroll in a certified domestic violence counseling program and complete 104 hours of certified domestic violence counseling.
On September 11, 2007, probation officer Tracey Maas filed an amended affidavit of probation violation alleging defendant violated a no-contact order by harassing his spouse via a telephone call on June 15, 2007, and also by having a friend contact his wife at her place of work in May 2007. Maas recommended defendants probation be revoked and reinstated on the same conditions with defendant to serve 30 days in county jail.
On October 4, 2007, Maas filed the operative third amended affidavit of probation violation, incorporating the allegations of the September 11 affidavit and adding two further allegations. These were that defendant was terminated from two different domestic violence programs — the El Centro program in January 2007 and the Archway program in September 2007 — and had failed to complete 104 hours of domestic violence counseling. The affidavit alleged defendant was terminated from the El Centro program "for using vulgar language, failing to follow directives from the counselor and stating in class, `I would have strangled her, when asked what he would have done differently during the present offense." The affidavit alleged defendant was terminated from the Archway program "for failing to follow directives from the counselor and failing to participate in the group process appropriately." Maas recommended that defendants probation be revoked and terminated and that defendant should serve six months in county jail.
On October 5, 2007, defendant waived arraignment, denied the allegations, and a contested hearing followed on the allegations of the third amended affidavit. Lisa Bremner, defendants spouse, testified that defendant was not allowed to contact her after December 15, 2006. Defendant and Lisa are embroiled in a child custody case in civil court. Lisa stated that defendants friend David contacted her on defendants behalf three or four times at her place of work around June 2007 in order to get her to sign paperwork regarding defendants visitation with her daughter Jeanelle. Lisa also stated that defendant called her at work on one occasion about visitation. On that occasion, Lisa told defendant he was not supposed to call her at work. Defendant got upset, complained about court fees, called her a bitch and a liar, and told Lisa, "You play hardball, I will play hardball."
On cross-examination, defense counsel sought to make an offer of proof that David was trying to serve Lisa with papers for a court date, Lisa was trying to avoid service, and that she was not represented by counsel at that point. The trial court took a recess to examine the family law file. Thereafter the trial court took judicial notice of the fact that in May 2007 defendant sought ex-parte relief and was required to provide notice to Lisa; that David Uccitelli served notice on Lisa on May 17 regarding a hearing set for June 1, 2007; and that Lisa was self-represented prior to June 19, 2007. Lisa further testified that the paper David tried to present to her at work was the same document she signed in court on June 1, 2007.
Supervising probation officer Tracey Maas also testified. Maas stated that on June 14, 2007, she was advised that defendant and Lisa had signed a stipulation allowing defendant visitation with their daughter. Defendant came to see Maas, and at his request she went before a judge and had the criminal protective order changed to allow peaceful contact with Lisa Bremner regarding exchange of the child. Maas stated that on June 15, 2007, Lisa Bremner called at around 10:00 a.m. and told Maas defendant had just called her at work. In response, Maas called defendant and he admitted phoning Lisa, calling her a liar and complaining about his court expenses.
Maas stated that she monitored defendants progress on his requirement to complete 100 hours of domestic violence counseling. On January 19, 2007, defendant was terminated from the El Centro domestic violence program as unsuitable due to his downgrading of the victim, use of vulgar language and comment that he should have strangled the victim when asked what he should have done differently. Subsequently, defendant enrolled in another domestic violence class at Archway but was terminated on September 28, 2007, on account of his negative attitude, dismissive attitude towards the group process, and refusal to accept any responsibility for the events or behavior leading to his enrollment in the program.
On cross-examination, Maas stated she called federal immigration authorities (ICE) to ask about defendants immigration status and learned he was in the country illegally. ICE called her back, informed her there was a warrant for defendants arrest on an immigration matter, and wanted to know the date of defendants next appointment with her. Maas told them and defendant was arrested by immigration officials at his next probation appointment on June 26, 2007.
Defendant testified in his own defense. Regarding the first two allegations, Defendant admitted he called Lisa on June 15, 2007, to find out when he could see his daughter. Defendant said he did not swear at Lisa but called her a liar. Defendant stated he called Lisa pursuant to an order permitting him to have communication regarding visitation. Furthermore, defendant admitted that he arranged for his friend Dave Uccitelli to serve papers on Lisa pertaining to a court date on June 1, 2007.
Regarding the allegation of termination from domestic violence classes at El Centro, defendant was first asked to explain his comment about strangling Lisa. Defendant stated he was asked in the class what he could have done differently, and as a joke he said, "Well, I guess I could have strangled her." Defendant stated he realized it was wrong of him to joke like that, and he apologized for it. Also, defendant acknowledged he referred to Lisa as "she" in class rather than by name, but was unaware that was considered as downgrading the victim. Further, defendant stated people used vulgar language in class all the time.
Regarding the allegation of termination from domestic violence classes at Archway, defendant stated that in class he was asked if he was getting anything out of the class and he simply responded honestly when he said, "This is 52 b... s... weeks." Defendant admitted he said in class that his wife was "racy and a liar." Also, he admitted that he complained about his probation officer because he "didnt trust her integrity." Further, defendant explained he felt "set up by the situation" and that his wife had told him "she was going to do something really terrible to me and I would regret it when she did it." On June 1, defendant continued, his wife produced a document of a DNA test indicating a "90 percent probability" he was not the "paternal father" of their daughter. Defendant stated his wife had deceived him all through their marriage that he was the father.
At the conclusion of the evidence and after comment from counsel, the trial court found true the allegations in paragraphs 1, 3 and 4 of the third amended affidavit that defendant violated his terms of probation by harassing the victim on the telephone on June 15, 2007, and by his termination from domestic violence counseling classes at El Centro in January 2007 and Archway in September 2007. The court did not find true the allegation in the second paragraph that defendant violated a no-contact order by having a third party contact Lisa Bremner in May 2007.
At a sentencing hearing on October 10, 2007, the trial court sentenced defendant to 1 year in county jail on count 7 with credit for 148 days served, and a fully consecutive sentence of 1 year in county jail on count 8. Defendant filed a timely notice of appeal on October 11, 2007.
DISCUSSION
We have independently reviewed the entire record and found no arguable issues. (People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly).) As required under Kelly, supra, we explain below why the discernable contentions raised by defendant in his supplemental letter all must fail. (Ibid. )
Defendant appears to challenge the basis for his guilty pleas on the grounds that his wife perjured herself at the preliminary hearing. However, defendant has forfeited review of any assertions challenging the factual bases for the pleas by failing to appeal the trial courts grant of probation on December 15, 2006. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Furthermore, to the extent defendant now suggests his plea was involuntary, we note defendant failed to file a timely motion to withdraw his guilty plea. (Penal Code, § 1018 [defendant may apply to withdraw guilty plea for good cause within six months after an order granting probation is made where imposition of sentence is suspended].)
Defendant also contends that he was not advised of the immigration consequences of his guilty pleas. Even if defendant had not forfeited this contention (see People v. Ramirez, supra, 159 Cal.App.4th at p. 1421), it is without merit because the statutory advisement of immigration consequences mandated by Penal Code, section 1016.5, subdivision (a) was recited in the waiver of rights form signed by defendant. Moreover, at the change of plea hearing defendant acknowledged his attorney explained the waiver of rights form and that he read and understood it before signing it. (People v. Quesada (1991) 230 Cal.App.3d 525, 536 [statutory admonition regarding immigration consequences need not be given orally and is "sufficient if . . . the advice is recited in a plea form and the defendant and his counsel are questioned concerning that form to ensure that defendant actually reads and understands it"].)
Defendant also appears to challenge the sufficiency of the evidence for the trial courts finding that he violated probation by claiming, inter alia, that his probation officer was "on a mission to get me any way she could" and by criticizing the basis for his termination from the domestic violence classes. Trial courts have very broad discretion in determining whether a probationer has violated probation (People v. Rodriguez (1990) 51 Cal.3d 437, 443), and an appellate court should interfere with the exercise of such discretion only in " `a very extreme case. " (Ibid.) In addition, the facts in a probation revocation hearing are provable by a preponderance of the evidence standard. (Id. at pp. 441-442.) Here, the record amply supports the trial courts determination that defendant violated his terms of probation by making a harassing phone call to his spouse and by failing to complete domestic violence counseling. Accordingly, the trial court did not abuse its discretion by revoking probation.
Defendant also objects that his sentence was "harsh" and suggests the consecutive sentences were unwarranted. Here, the trial court was not required to state its reasons for the sentence it imposed on defendants misdemeanor convictions. (People v. Fugate (1990) 219 Cal.App.3d 1408, 1413 [no requirement under Penal Code, § 1170, subdivision (c) that trial court state its reasons for a sentence choice for misdemeanor convictions].) Nevertheless, on this record we cannot say the trial court abused its discretion in imposing sentence. (People v. Evans (1983) 141 Cal.App.3d 1019, 1022 [sentencing court has wide discretion in weighing aggravating and mitigating factors for purposes of imposing an appropriate sentence].)
Trial courts routinely rely on information contained in presentence reports (PSR) to make sentencing decisions (Cal. Rules of Court, rules 4.411(d), 4.420(b)). In this case the PSR relates that on August 14, 2006, defendant climbed on top of Lisa, pinned her shoulders with his knees, used his thumbs to pull open her mouth and slapped her in the face after she resisted his attempts to have sexual relations. Lisa then ran from the bedroom into the living room but defendant grabbed her purse so that she could not take the car. These facts provide an adequate basis for the trial court to impose sentences on each count (Penal Code, § 654), and to impose consecutive rather than concurrent sentences, (Cal. Rules of Court, rule 4.425(a)).
Finally, defendant asserts in his supplemental letter that the trial court changed his misdemeanor convictions to felony convictions. In this regard, defendant correctly notes that the Order of Commitment to County Jail filed on October 10, 2007, erroneously indicates by a misplaced check mark that defendant sustained felony rather than misdemeanor convictions.
DISPOSITION
The judgment is affirmed and the case is remanded so that the trial court can file a new Order of Commitment nunc pro tunc correctly designating defendants convictions as misdemeanors.
We concur:
Pollak, Acting P. J.
Siggins, J. --------------- Notes: Throughout his supplemental letter, defendant refers to matters concerning his custody dispute in family court and his case in immigration court. Specifically, defendant asks us to "link [his] civil case and immigration to this appeal." Our jurisdiction, however, extends only to defendants appeal of his final judgment of conviction pursuant to Penal Code section 1237.