NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE COURT*
Appointed counsel for defendant Brandon Owen Yates asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel's brief includes defendant's personal request that we consider whether the trial court abused its discretion in failing to reinstate probation. We sent a letter to defendant, advising him of his 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 further communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
On March 25, 2015, defendant argued with his wife and injured her foot.
On April 7, 2015, defendant pled guilty to inflicting corporal injury upon a spouse (Pen. Code, § 273.5).1
On June 25, 2015, the trial court suspended imposition of sentence and granted defendant three years' probation.
On February 25, 2016, defendant was found in possession of a dirk or dagger on his person (§ 21310).
On March 21, 2016, defendant was found under the influence of a controlled substance and in possession of methamphetamine and a methamphetamine pipe (Health & Saf. Code, §§ 11550, subd. (a), 11377, subd. (a)), 11364, subd. (a)).
On June 7, 2016, at the probation revocation hearing, Attorney Jared Ramirez stood in for Attorney Ismael Rodriguez as defense counsel. Both the prosecutor and Attorney Ramirez informed the trial court that an agreement had been reached for defendant to admit a violation of probation in the first case, in return for a two-year prison term and dismissal of the charges in the second and third cases. Defendant admitted that his possession of the dirk or dagger violated the terms and conditions of his probation. Both parties agreed that by stipulating to the agreement, they waived the right to appeal. The trial court confirmed with defendant that he understood he was waiving his right to appeal. He answered affirmatively and agreed he was waiving his right to appeal.
On July 6, 2016, Attorney Rodriguez and a different prosecutor were before the same judge. Pursuant to the parties' previous agreement, the trial court sentenced defendant to two years in prison. Attorney Rodriguez informed the court he did not think the parties had waived appellate rights. The court then explained to defendant he had the right to appeal the sentence.
DISCUSSION
"`Probation is an act of clemency. . . .'" (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Section 1203.2, subdivision (a) authorizes the trial court to revoke a defendant's probation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her supervision." (See People v. Rodriguez (1990) 51 Cal.3d 437, 440; People v. Johnson (1993) 20 Cal.App.4th 106, 110 ["`[w]hen the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period'"].) In considering whether to revoke probation, the court's inquiry is directed "to the probationer's performance on probation." (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) "[A] decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court." (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) "Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it." (People v. Buford (1974) 42 Cal.App.3d 975, 985.) The facts supporting probation revocation need only be proved by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d at pp. 441-442.)" `Judicial discretion is that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or the demand of equity and justice. [Citation.] The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason.' [Citations.] A decision will not be reversed merely because reasonable people might disagree. `An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review. [Citations.] `Further, to be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice.'" (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
Here, we first observe that defendant clearly waived his right to appeal from his conviction as an integral term of the plea agreement. Apparently, the different prosecutor, the different defense counsel, and the same judge were all unaware of this waiver. But even without the express waiver, defendant is barred from raising any challenge to his sentence (which was also an integral term of the plea bargain) or to the validity of his plea agreement without first obtaining a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1096; People v. Panizzon (1996) 13 Cal.4th 68, 79.)
Furthermore, defendant admitted violating probation by carrying a dirk or dagger. This admission amply proved the facts supporting the revocation by a preponderance of the evidence. And there is nothing to suggest defendant's carrying of the weapon was anything but willful and unlawful. Revocation of defendant's probation was an act in furtherance of a legitimate objective, not an arbitrary, capricious, or whimsical use of the trial court's power.
Our review of the entire record has revealed no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
