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PEOPLE v. YEARY, D071194. (2017)

Court: Court of Appeals of California Number: incaco20170419069 Visitors: 14
Filed: Apr. 19, 2017
Latest Update: Apr. 19, 2017
Summary: NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. NARES , J. In September 2014 Joanna Marie Yeary pleaded guilty to making a false insurance claim. (Pen. Code, 550, subd. (a)(1).) In March 2015 the tr
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In September 2014 Joanna Marie Yeary pleaded guilty to making a false insurance claim. (Pen. Code, § 550, subd. (a)(1).) In March 2015 the trial court suspended the imposition of sentence for three years and granted Yeary formal probation. The court ordered Yeary to spend 365 days in custody, awarded her 72 days of pre-sentence credits, but allowed her to be released to a residential treatment facility after serving 180 days in custody, including credits. The court also imposed various fines and fees.

In August 2015 police arrested Yeary for violating the conditions of her probation that she complete a residential treatment program, not use or possess controlled substances, report to probation, obey all laws, and not use force, threats, or violence on another person. After Yeary admitted the probation violation, the trial court formally revoked probation and then reinstated it.

In November 2015 the trial court revoked probation and issued a bench warrant after the probation officer submitted a report stating that Yeary had failed to report to probation. After Yeary admitted violating probation, the court formally revoked probation and reinstated it.

In July 2016 the court revoked Yeary's probation for the third time and issued a bench warrant after the probation officer submitted a report stating that she had violated the conditions of probation by using or possessing controlled substances, not completing a residential treatment program, and failing to report address changes to probation.

At a September 2016 hearing on the probation violation, the trial court found Yeary in violation of probation for failing to abstain from drugs and failing to report her change of address. The court formally revoked probation and sentenced Yeary to the midterm of three years in prison. The court ordered that Yeary pay the $280 restitution fine, the $40 court security fee, and the $30 criminal conviction fee, but did not impose any other fees, including drug program or booking fees, finding that she did not have the ability to pay. The court stayed a $280 parole revocation restitution fine. Yeary received credits for a total of 394 days. Yeary timely appealed.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has identified the following issues that "might arguably support the appeal," whether: (1) sufficient evidence supported a finding that Yeary violated probation; (2) probation should have been reinstated; and (3) the trial court erred in imposing the middle term. (Anders v. California (1967) 386 U.S. 738, 744 (Anders).)

Yeary's probation officer testified that Yeary violated probation by testing positive for methamphetamine in April and May, Yeary self-terminated from a treatment program, and failed to contact probation. This evidence supported the probation revocation under the applicable preponderance of the evidence standard. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Moreover, the decision whether to reinstate or terminate probation rests within the broad discretion of the trial court. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) Nothing in the record demonstrates any abuse of discretion in revoking probation. Finally, a statement of reasons is required even if the middle term is imposed. (Pen. Code, § 1170, subd. (b); People v. Sandoval (2007) 41 Cal.4th 825, 847.) Here, the trial court prefaced its sentencing decision with a lengthy review of Yeary's history before exercising its discretion to impose the middle term.

We offered Yeary the opportunity to file a brief on her own behalf, and she has not responded. Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Yeary on this appeal.1

DISPOSITION

The judgment is affirmed.

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

FootNotes


1. Appellate counsel noted that the minute order of the sentencing hearing and abstract of judgment correctly state that Yeary received a total of 394 days of credit, but incorrectly state that she received 220 actual days of credit, rather than 222 actual days of credit. Appellate counsel sent a letter to the trial court on January 31, 2017, seeking correction of the minute order and abstract of judgment. Based on our request, appellate counsel sent a letter enclosing copies of the corrected minutes and abstract of judgment. Accordingly, we deem this issue moot.
Source:  Leagle

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