Opinion
E068407
05-24-2018
THE PEOPLE, Plaintiff and Respondent, v. TONY TERELL BRADFORD, Defendant and Appellant.
Steven S. Lubliner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1400001) OPINION APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
In January 2014, defendant and appellant Tony Terell Bradford pled no contest to inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a)). In return, defendant was placed on formal probation for a period of three years on various terms and conditions of probation. Defendant repeatedly violated the terms and conditions of his probation. In May 2017, after being reinstated on probation several times, the trial court terminated defendant's probation and sentenced him to four years in state prison with 532 days of credit for time served. Defendant appeals from the trial court's finding he violated the terms of his probation and sentencing him to four years in state prison. Based on our independent review of the record, we find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation report. --------
On December 30, 2013, defendant lived with the victim, the mother of his two children. While in their apartment, defendant became upset about noise the victim was making in the kitchen. Defendant came into the kitchen and told the victim to be quiet. Suddenly, defendant punched the victim with his fist in her left eye, knocking her to the floor. After defendant left the kitchen, the victim walked to a neighbor's apartment and called the police. When officers arrived, the victim positively identified defendant as the person who had assaulted her. The officers noted the victim's left eye was red and swollen, and there was dried blood near her nose and mouth.
On January 2, 2014, a felony complaint was filed charging defendant with inflicting corporal injury to a spouse, cohabitant, or child's parent (Pen. Code, § 273.5, subd. (a)).
On January 15, 2014, pursuant to a negotiated plea agreement, defendant pled no contest to the charge, in exchange for formal probation for a period of three years.
On March 25, 2014, defendant was placed on probation, in accordance with his plea agreement, for a period of three years on various terms and conditions, including serving 180 days in county jail.
On June 9, 2014, the trial court modified various terms and conditions of defendant's probation. In relevant part, the court modified defendant's jail condition to reflect that he had accrued 18 days against the term and that he could serve the balance on the weekend work-release program. Defendant was ordered to report to the program on July 12, 2014, by 6:00 a.m.
Defendant failed to report to his work-release program as ordered. Therefore, on August 11, 2014, the probation department alleged that defendant violated the terms of his probation by failing to report to his work-release program. On that same day, the court revoked defendant's probation, and a warrant was issued for defendant's arrest.
On December 29, 2014, defendant admitted violating his probation as alleged. The trial court thereafter reinstated defendant on probation with modified terms, including serving 240 days in county jail with 106 days of credit for time served.
On March 2, 2015, the probation department alleged that defendant violated his probation by failing to enroll in and complete a domestic violence program. On March 17, 2015, the trial court found defendant was not in violation due to confusion about the enrollment date. The court then continued defendant on probation with modified terms to dispel any confusion about his enrollment and completion dates of his domestic violence batterer's program.
Defendant was scheduled to appear in court on December 2, 2015, for a probation review hearing. On that date, defendant failed to appear as directed, and the court issued a warrant for his arrest. Defendant was in custody by March 3, 2016.
On April 1, 2016, defendant admitted violating the terms of his probation when he failed to appear for a probation review hearing as directed. Immediately thereafter, the trial court imposed and suspended an upper four-year term, and continued defendant on probation with modified terms, including serving 365 days in county jail with 300 days of credit for time served.
On January 20, 2017, a petition to revoke defendant's probation was filed alleging that defendant had violated his probation by (1) failing to report to his probation officer as directed; (2) failing to cooperate and follow all reasonable directives of his probation officer; (3) failing to permit visits and searches of his home; (4) failing to submit to a search of his person or residence; and (5) failing to timely enroll in and complete a domestic violence batterer's program. Defendant's probation was revoked, and a warrant was issued for defendant's arrest.
On May 10, 2017, defendant filed a motion to exclude statements he had made to his probation officer after his arrest for violating his probation. Defendant argued that admission of his statements violated his Sixth Amendment right to counsel as construed in Massiah v. United States (1964) 377 U.S. 201.
The People opposed the motion, arguing Massiah was inapplicable in probation violation hearings; California Rules of Court, rule 4.411.5 lists a defendant's statements as being required in presentence probation reports, if available; and defendant's statements were voluntary, willful, and not obtained in violation of his Sixth Amendment right to counsel or due process.
A hearing on defendant's motion and the petition to revoke defendant's probation was held on May 24, 2017. Following argument on defendant's motion to exclude his statements to his probation officer, the trial court denied defendant's motion, finding defendant's position was not supported by any statutory law, or any state or federal case law. Specifically, the court noted numerous cases had held that probation violation hearings are different in nature and that no case or statute supports defendant's Sixth Amendment right argument during questioning by a probation officer.
The court thereafter heard testimony from defendant's probation officer, Officer Toleston. Officer Toleston stated that she was defendant's probation officer handling domestic violence supervision and testified as follows: She was familiar with how probationers' records are kept and had supervised defendant. She had met with defendant and provided defendant with the terms and conditions of his probation, including the conditions alleged to have been violated. Defendant was required to provide proof of enrollment in a domestic violence batterer's treatment program by June 10, 2016. He did not provide proof of enrollment until June 30, 2016. Defendant was also required to provide proof of completion by July 15, 2017. He, however, failed to provide any proof of completion and was terminated from the program in September 2016.
In addition, Officer Toleston explained that defendant was required to report to probation regularly. Defendant reported to Officer Toleston on October 16, 2016, but failed to report after that date. On November 5, 2016, Officer Toleston went to defendant's residence to conduct a compliance check, but defendant was not present. Officer Toleston left a business card with defendant's girlfriend that directed him to report on November 7, 2016. Officer Toleston went to defendant's residence again on December 20, 2016, to conduct a home check; however, defendant was not there. The front door was open, but the screen door was closed. Officer Toleston knocked and announced her presence several times, but no one responded. She left a business card directing defendant to report the next day, however, defendant failed to report. Officer Toleston acknowledged that she had no basis for concluding defendant had been home but that he refused to answer. On January 11, 2017, Officer Toleston went to defendant's residence to conduct another compliance check. She knocked and announced her presence but no one responded. The manager on site informed Officer Toleston that defendant had just been served with an eviction notice prior to her arrival. Thereafter, Officer Toleston filed a petition to revoke defendant's probation, and a bench warrant for defendant's arrest was issued.
Officer Toleston did not believe defendant was a good candidate for probation. She noted that when defendant was arrested on the bench warrant, he was found in possession of methamphetamine on his person. She acknowledged that defendant had apparently gone off his mental health medications, a development that can lead to noncompliance with probation conditions. Officer Toleston spoke with defendant on March 28, 2017, in regard to the alleged probation violations. Regarding his failure to complete the domestic violence batterer's program, they had discussed that while defendant was attending the program, he had a balance due. In regard to the home visits by Officer Toleston, defendant reported that he never knew about the visit she conducted in January 2017, but that he had known about her visit in December 2016. Defendant explained that he had not reported as directed out of fear that he would be violated. However, he also told Officer Toleston that he had been working long hours around that time. Defendant claimed that although he had not checked in with Officer Toleston, he had checked in at the probation department kiosk in January and February 2017.
In regard to his drug possession, defendant admitted possessing methamphetamine for personal use on March 2, 2017. He knew that was a basis for violating his probation, and acknowledged not following up on drug and alcohol treatment referrals the probation department had provided him. He stated that he was not ready to seek sobriety and did not think he had a drug problem. Defendant also reported that he had kicked out a roommate whom he knew was dealing drugs. This fact, however, did not influence Officer Toleston's conclusion that defendant was no longer suitable for probation.
After Officer Toleston's testimony, defendant called no witnesses. The trial court then heard argument from counsel. At the conclusion of argument, the court found defendant in violation of his probation for failing to complete his domestic violence batterer's program and for failing to report to his probation officer. As the court was about to follow the probation officer's recommendation, defendant stated that he was unaware he could testify and asked to do so. The court then reopened the case and permitted testimony from defendant and rebuttal testimony from Officer Toleston.
Defendant testified that he was not at home when his probation officer came to his door on December 20, 2016, but that he was in the parking lot. He claimed that he never received the probation officer's business card and that he did not know the probation officer had come to his home on January 11, 2017.
Defendant denied having been terminated from his domestic violence batterer's program, and he explained that his understanding was that if he brought his payments current, he could continue attending classes. He made two payments in January 2017, but his work was so sporadic that he could barely afford to pay his rent. Defendant denied having told Officer Toleston anything to the contrary.
Defendant also asserted that he never discussed alcohol or drug treatment services with his probation officer, but he did recall saying he was not ready to pursue sobriety. He testified that he was now ready to pursue sobriety, drug treatment, and treatment for his mental health issues. He agreed that he was less able to focus and figure out problems when he was off his medication. He disagreed that he had been provided with chances to get mental health treatment.
Defendant denied informing his probation officer that he did not report as ordered simply because he was afraid he would be violated. He was afraid he would be violated because a neighbor told him that Officer's Toleston's partner was angry, called defendant bad names, and stated that he would be violated. Despite being afraid due to the statements made by Officer Toleston's partner, defendant checked in at the probation kiosk. He admitted that he did not check in with probation in December 2016, but believed he met with Officer Toleston in November 2016.
Officer Toleston testified in rebuttal that defendant had been screened for mental health services and provided with appointments he could attend. He checked in for one but never followed up. She also explained that defendant never met with her in November 2016, but that she conducted a home visit in November 2016 and left an appointment card because defendant was not there. Defendant never reported to probation as directed. The last time defendant reported in person was in October 2016. Officer Toleston noted that checking in by kiosk was not considered compliant after an attempted home visit.
Officer Toleston agreed that when she spoke to defendant in custody, defendant stated that because he had a balance due on his domestic violence batterer's program, he had stopped attending. Defendant never previously informed her that he was having trouble paying for the domestic violence classes, despite being told that if he was having trouble complying with his probation conditions, he was supposed to let her know.
On cross-examination, Officer Toleston acknowledged that defendant had brought up his ability to pay in October 2016. The notice of termination that she reviewed only stated that defendant's absences led to his termination. Officer Toleston explained that defendant attended six classes and missed five classes and that defendant was allowed to miss four classes before being terminated from the program. Officer Toleston acknowledged that the notice of termination from the batterer's program noted defendant had an outstanding balance due. Officer Toleston agreed that if defendant had attended classes but did not pay for them, he would not get credit for them.
The trial court found defendant in violation of his probation by failing to cooperate with probation regarding his batterer's program, failing to report as directed, failing to permit a search of his residence on December 20, 2016, and failing to report to his probation officer in person after that attempted home visit. Following further argument, the court terminated defendant's probation, and sentenced defendant to the previously suspended four-year sentence in state prison. Defendant was awarded 532 days of credit for time served, consisting of 266 actual days and 266 days of conduct credit.
On May 31, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.