People v. Nickens

Full title: THE PEOPLE, Plaintiff and Respondent, v. DAVID NICKENS, Defendant and…

Court: California Court of Appeals, First District, Fourth Division

Date published: Jun 28, 2007

No. A116452 (Cal. Ct. App. Jun. 28, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. DAVID NICKENS, Defendant and Appellant. A116452 California Court of Appeal, First District, Fourth Division June 28, 2007

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. 199373

Reardon, J.

Appellant David Nickens pled guilty to second degree automobile burglary (Pen. Code, § 459) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). Other counts and allegations of prior convictions were dismissed. On August 23, 2006, imposition of sentence was suspended and appellant was granted probation on certain terms and conditions, including not to violate the law.

On October 24, 2006, the district attorney moved to revoke appellant’s probation for another second degree burglary, possession of drug paraphernalia, and possession of burglary tools. At the hearing on the motion to revoke, Donovan Bauer testified that he saw appellant “forcing his way into a car” which Bauer described as a red Jeep. Bauer called the police. Officer Schmidt responded to the scene and observed appellant sitting in the front passenger seat of the red Jeep. Schmidt recognized appellant from a prior arrest. A patsearch of appellant was conducted and a glass “crack” pipe was found in his jacket pocket. During a booking search following his arrest, a screwdriver was found in appellant’s jacket as well. Joseph Bernisky, the owner of the red Jeep, testified that he did not give appellant permission to be inside his vehicle.

At the conclusion of the hearing, the trial court found that appellant violated his probation. At sentencing on January 12, 2007, the trial court declined to reinstate appellant on probation and sentenced him to the midterm of two years in state prison.

Counsel for appellant has filed an opening brief raising no issues and asking this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We have conducted the requested review and conclude that there are no arguable issues.

Appellant was represented throughout the proceedings by counsel. The evidence adduced at the revocation hearing supports the findings of the trial court. There was no abuse of discretion in declining to reinstate appellant on probation and imposing the midterm sentence of two years in state prison.

Judgment affirmed.

We concur: Ruvolo, P.J., Sepulveda, J.