PEOPLE v. VELARDE

No. D070647.

THE PEOPLE, Plaintiff and Respondent, v. RAUL LOPEZ VELARDE, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Cannon & Harris and Donna L. Harris , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

O'ROURKE, J.

Raul Lopez Velarde appeals an order after a contested hearing finding him in violation of his postrelease community supervision (PRCS) (Pen. Code, § 3450 et seq.). His counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) to determine whether there are any arguable issues for review. After our independent review of the record, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Velarde was convicted of one count of leaving the scene of an accident resulting in injury to a person other than himself. (Veh. Code, § 20001, subd. (a).) The court sentenced him to the upper term of three years in state prison.

In May 2014, Velarde was released from prison into PRCS and several months later referred to drug and alcohol counseling as well as a residential and reentry program (GEO Reentry Services, at times, GEO). In December 2014, the court summarily revoked Velarde's PRCS after he had failed to enroll in counseling. In January 2015, it reinstated PRCS and ordered Velarde to serve 60 days in jail.

On February 4, 2015, Velarde agreed to terms and conditions of supervision requiring him to, among other things, abstain from possession or use of any drugs, narcotics or other illicit substances not prescribed by a licensed physician; enroll and participate in the reentry program and counseling; and to report in person on the first Wednesday and 15th day of every month at the Imperial County Probation Department (the Department). On February 16, 2015, the Department alleged that Velarde had violated his PRCS due to his failure to enroll in counseling. The Department amended its petition the following month to include allegations that Velarde also failed to enroll in the reentry program and failed to report to his assigned probation officer as directed. The court continued the matter several times but Velarde failed to attend his April 20, 2015 court date.

In June 2015, the court found Velarde in violation of PRCS and sentenced him to serve 60 days in county jail. The following month, the Department again alleged that Velarde had violated probation by failing to report to his probation officer within 48 hours of his release from custody or report to the Department as directed, and by failing to enroll in his reentry program or counseling. Following several continuances and reports documenting additional failures to comply, in November 2016 Velarde was again found to be in violation of PRCS. On November 16, 2016, the court revoked PRCS but reinstated it and ordered Velarde to serve 180 days in jail, participate in the reentry program, and attend counseling with Behavioral Health Services.

On March 24, 2016, the Department filed the present petition to revoke Velarde's PRCS. It alleged Velarde had failed to report to his probation officer as directed; failed to enroll and participate in counseling or reentry services; and failed to abstain from the possession or use of drugs, narcotics or other illicit substances not specifically prescribed for him by a licensed physician. The probation officer's declaration stated in particular that in 2016 Velarde had (1) failed to report to the probation officer on March 2 and 15; (2) missed counseling sessions with Carlos Gonzalez from Behavioral Health Services on February 4, 11, 18, and 25, and March 3, 10 and 17; (3) failed to attend his reentry services program on March 12, 14, 15, 16, 17, 18, 19, 21 and 22; and (4) submitted a positive test for methamphetamine on March 7. The Department recommended that Velarde serve 180 days in jail, that PRCS be revoked and reinstated with Velarde ordered to participate in reentry services and counseling with Carlos Gonzalez from Behavioral Health Services, and that Velarde be ordered to report to his probation officer within 48 hours from his release from custody.

A contested PRCS revocation hearing was held on June 1, 2016. Velarde was represented by counsel. The People presented three witnesses: Velarde's probation officer Heather Schenck, Carlos Contreras, the program manager for GEO, and Carlos Gonzalez, Velarde's substance abuse counselor with Behavioral Health Services. Schenck testified she met with Velarde and discussed each of the terms and conditions of his PRCS on February 4, 2015. He dated and signed the document in her presence. Schenck explained that Velarde was required to report to her twice a month on the first Wednesday and the 15th but he had not complied, as she had last met with him on March 8, 2016. Velarde called Schenck twice and left a message stating that he was working, then hung up. Velarde never provided Schenck with a pay stub to show he was in fact working. Schenck explained that she did not consider flash incarceration as an option because it was Velarde's fourth violation of PRCS and she would have to meet face-to-face with him, but was unable to do so.

Contreras testified that Velarde was a participant at GEO on three different occasions and he had enrolled on January 14, 2016, attended the program orientation and completed a behavioral change plan, but was dropped after he failed to attend on a minimum of ten occasions from March 12, 2016, through March 22, 2016. According to Contreras, Velarde understood his obligation to appear. Contreras testified that on March 2, 2016, Velarde dropped off a check stub to GEO showing he had found employment, but the employment caused him to resume using illegal substances, and he began missing days after his urine tested presumptively positive for methamphetamine on March 7, 2016. By signing a form, Velarde admitted he had used methamphetamine two days earlier. Contreras testified that Velarde's urine tested negative on March 8, 2016.

Gonzalez testified that Velarde had been referred to him for counseling sessions but only met with him once for an assessment. Velarde was required to meet with Gonzalez for 55 minutes once a week for a six-month period, but missed sessions in 2016 on February 4, 11, 18, and 25 and March 3, 10 and 17. Velarde contacted Gonzalez to explain that he was trying to find employment, so the counselor excused him from one session, and on one other occasion Velarde called to say he was not coming in because he was having an undescribed "problem," but Gonzalez never saw him and Velarde did not contact him at all after that.

Velarde did not present any witnesses.

The court found Velarde in violation of his PRCS conditions based on Velarde's failure to participate in counseling and his reentry services program, and that he failed to abstain from the possession or use of drugs or narcotics. Observing that Velarde had experienced repeated failures of PRCS, the court followed the Department's recommendation to revoke his PRCS but reinstate it, and to order that Velarde serve 180 days in the county jail with 84 total days' credits for time served. It also ordered Velarde to personally report to his probation officer within 48 hours of his release from custody and to enroll in and complete the GEO program.

Velarde filed a notice of appeal on July 7, 2016.

DISCUSSION

Velarde's appellate counsel has filed a brief, pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, urging no grounds for reversal of the judgment, and asking this court independently to review the record for error. Pursuant to Anders, counsel identifies the following issues to assist the court in its search of the record for error:

(1) Whether the evidence adduced at the contested violation hearing was sufficient to establish that Velarde violated the terms of his PRCS; and (2) Whether the trial court abused its discretion by ordering Velarde to serve 180 days in custody for violating the terms of his PRCS.

After receiving the opening brief from appellate counsel, we informed Velarde he could file a supplemental brief. He did not do so.

We have reviewed the record consistent with the requirements of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738; considered the issues listed by appellate counsel; and found no reasonably arguable grounds to reverse or to modify the judgment. Velarde was at all times represented by counsel who protected his rights and interests. Velarde received notice and a hearing on his alleged PRCS violations and was represented by counsel at that hearing. Substantial evidence supports the court's finding that he violated the terms of his PRCS, and it did not abuse its discretion in revoking PRCS, reinstating it, and imposing a 180-day sentence. (Pen. Code, § 3455, subds. (a)(1)-(3), (d); see People v. Rodriquez (1990) 51 Cal.3d 437, 443 [court's determination whether a probationer has violated probation is reviewed for abuse of discretion; "only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of . . . revoking probation"]; People v. Gonzalez (2017) 7 Cal.App.5th 370, 381 [orders revoking PRCS and court's factual findings are respectively subject to abuse of discretion and substantial evidence standards of review].) Appointed counsel has represented Velarde competently on this appeal.

DISPOSITION

The order is affirmed.

BENKE, Acting P. J. and IRION, J., concurs.


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