PEOPLE v. BERCH

No. G054120.

THE PEOPLE, Plaintiff and Respondent, v. BRANDON JAMES BERCH, Defendant and Appellant.

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


Attorney(s) appearing for the Case

Frank J. Torrano , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

FYBEL, J.

INTRODUCTION

We appointed counsel to represent defendant Brandon James Berch on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record. We provided defendant 30 days to file written argument on his own behalf; no supplemental response has been received.

We have examined the entire record and appointed appellate counsel's Wende/Anders brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.

BACKGROUND

Defendant Brandon James Berch was sentenced to four years in state prison for possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and carrying a concealed dirk or dagger (Pen. Code, § 21310). He was released from prison on three years' parole supervision in November 2015. Among defendant's special parole conditions were that he participate in continuous GPS monitoring of his whereabouts; charge the GPS device at least twice a day for at least one full hour each time; not tamper with the GPS device; contact his parole agent immediately if the GPS device vibrated or made an audible tone or beep; and notify the parole agent in advance if he spent the night away from his residence. The parole agent went over these conditions with defendant.

On the afternoon of July 19, 2016, defendant's parole agent placed a fully-charged GPS tracking device on defendant's ankle. About nine hours later, the agent received an alert that the battery level was low. Two hours after that, the device triggered a critically low battery alert. The agent testified the device would have emitted a tone or beep at that time; defendant did not notify his parole agent, however. The battery went dead about an hour later. The next morning, the parole agent went to the location at which defendant had last had GPS contact, but defendant was not there. Later that day, the parole agent went to defendant's home, but he was not there either.

About seven days later, the parole agent learned defendant had been arrested. When the agent visited defendant in jail, defendant was not wearing the GPS device; defendant stated he had given it to someone at a motel.

Defendant had at least one earlier parole violation based on his GPS device being removed. The parole agent did not violate defendant's parole based on that incident.

A petition for parole revocation was filed in August 2016, alleging defendant had disabled a GPS tracking device (Pen. Code, § 3010.10, subd. (b)), failed to participated in GPS monitoring (id., subd. (a)), and failed to report to his parole agent. The petition noted that intermediate sanctions short of parole revocation had been considered, but were deemed inappropriate. After hearing, the trial court concluded the allegations had been proven, found defendant in violation of his parole, and sentenced him to serve 180 days in jail, with 134 days of presentence credit. Defendant timely filed a notice of appeal.

ANALYSIS OF POTENTIAL ISSUES

There was sufficient evidence to support the trial court's findings that defendant violated the conditions of his parole by disabling the GPS device, failing to participate in monitoring, and failing to report to his parole agent. The parole agent's recommendation that intermediate sanctions were not appropriate was supported by evidence regarding defendant's previous parole violation involving the GPS device. The period of incarceration imposed—180 days—is required by statute. (Pen. Code, § 3010.10, subd. (e). The court correctly calculated the number of days for which defendant was entitled to presentence credit—67 actual and 67 good conduct.

Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.

DISPOSITION

The judgment is affirmed.

ARONSON, Acting P. J. and THOMPSON, J., concurs.


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