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C086641 (Cal. Ct. App. Nov. 7, 2018)



THE PEOPLE, Plaintiff and Respondent, v. JOHN HENRY LEE, Defendant and Appellant.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF152894)

A complaint filed in the Yolo County Superior Court charged defendant John Henry Lee with first degree robbery and domestic violence and alleged two prison priors.

Defendant pled no contest to robbery in return for dismissal of the remaining counts and enhancements. The prosecutor stated the factual basis for the plea as follows: "On May 4th, 2015, the victim came home, she saw the father of her son, which is the defendant, sleeping in her bed. They got into an argument, which turned physical, and he took her purse, which had her money and her work tips, keys, and money . . . , and left with it, and she did not get that back. [¶] He did so with the intent to permanently deprive her of the money."

The trial court imposed but suspended a three-year state prison sentence and placed defendant on five years' felony probation, including the condition that he enter and complete a one-year residential substance abuse treatment program.

On November 5, 2015, the probation department filed an allegation that defendant had left the Delancey Street program one month after entering it, without completing it.

In February 2016, Humboldt County, where a probationary term was imposed on defendant in 2013, informed Yolo County that it intended to violate defendant's probation because he had entered a plea in this case. Produced in Yolo County on April 22, 2016, defendant admitted his violation of probation in the present case. The trial court imposed 30 days in custody consecutive to Humboldt County's case, reinstated probation, and extended it to November 4, 2020.

On September 8, 2016, the probation department alleged that defendant was released from custody in Humboldt County on August 6, 2016, and had not contacted the probation department or proved that he was enrolled in a one-year residential treatment program. On November 14, 2016, defendant admitted the violation. The trial court imposed 60 days in custody and reinstated probation.

On February 14, 2017, the probation department alleged that defendant was terminated by the Cache Creek residential program for failure to follow rules. On April 3, 2017, the trial court found defendant in violation of probation, imposed 81 days with credit for time served, required twice-weekly attendance at Alcoholics Anonymous (AA) meetings until he reenrolled in a program, and reinstated probation on the same terms.

On April 5, 2017, the probation department alleged that defendant was directed to attend the Day Reporting Center at a specific time, but did not attend or otherwise report to probation. The probation officer filed a document stating that defendant had appeared on April 3, 2017, and said he wanted to enter the Salvation Army residential program in San Francisco, but that the intake counselor there had informed the probation officer that there were no available beds. The probation officer directed defendant to report by April 12, 2017, so that the officer could place defendant in a program, but defendant had not reported or made further contact.

On May 12, 2017, the probation department amended its latest allegation of probation violation to incorporate the above facts, as well as defendant's failure to attend AA meetings.

On February 16, 2018, after a contested probation violation hearing, the trial court found that defendant was in violation on each of the alleged grounds. Finding defendant not amenable to a further grant of probation, the court imposed the previously suspended three-year prison sentence. The court awarded defendant 421 days of presentence custody credits (378 actual days and 43 conduct days). After a communication from appellate counsel, the court issued an amended abstract of judgment awarding defendant one additional day of credit. The court imposed a $300 restitution fine and a matching suspended parole revocation restitution fine; the court also ordered the previously imposed but suspended $300 probation revocation fine to be paid. The court further imposed a $40 court operations assessment and a $30 conviction assessment.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.


The judgment is affirmed.


Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Renner, J.

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