P. v. Nelson CA1/2

Filed 7/26/13 P. v. Nelson CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A137793 v. SHAWN ALLEN NELSON, (Sonoma County Super. Ct. No. SCR606427A) Defendant and Appellant.

This appeal follows from a contested revocation of probation hearing and the imposition of the five-year sentence. Appellant’s counsel filed the opening brief without raising any specific issue and requests that the court conduct an independent review of the entire record in accordance with People v. Wende (1979) 25 Cal.3d 436. Appellant was apprised by counsel of his right to file a supplemental brief on his own behalf and did not do so. We have reviewed the entire record and found no arguable issues that would present a meritorious appeal. BACKGROUND The underlying information filed by the Sonoma County District Attorney’s Office alleged that appellant struck an unsuspecting victim in the face with a bottle while checking out of a grocery store. Appellant entered a plea of no contest to the charge of assault by force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)),1 and admitted the allegation of a prior prison term enhancement. (§ 667.5, subd. (b).)

1 Further unspecified code sections refer to the Penal Code.

1

Appellant was placed on probation pursuant to a negotiated agreement that suspended the imposition of sentence and imposed standard various terms and conditions, including that he avoid illegal substances and obey all laws. A petition to revoke probation was filed in May 2012, alleging that appellant had failed to submit to chemical testing as directed, and that he had failed to inform his probation officer of his whereabouts as directed. A month later, appellant was found in violation of probation, which was reinstated and modified by extending the term for an additional 12 months, among other conditions. Six months later, appellant violated probation again when he submitted to a bad urine sample and admitted using methamphetamine. On January 4, 2013, Probation Officer Kelly Dunaway testified in support of the latest revocation petition that appellant had tested positive for amphetamine and methamphetamine and had admitted that he used “meth” to alleviate back pain. This presumptive positive was based on his admission of the drug usage and not sent to a lab for confirmation. Appellant’s probation was summarily revoked. The court denied a further reinstatement of probation and imposed the upper term of four years on the underlying assault by means of force likely to cause great bodily injury offense, along with a consecutive year for the section 667.5, subdivision (b) prior, for a total of five years in state prison. Appellant filed a timely notice of appeal. DISCUSSION This appeal is from the revocation of appellant’s probation and the imposition of the five-year term upon execution of the original sentence. Appellant’s counsel raises no issues and asks us to conduct a review of the entire record consistent with Wende to determine whether there are any issues which would, if resolved favorably to appellant, result in reversal or modification of the judgment. Revocation of probation lies within the broad discretion of the trial court. (People v. Angus (1980) 114 Cal.App.3d 973, 987.) Absent abuse of that discretion, this court will not disturb the trial court’s findings. Section 1203.2, subdivision (a) authorizes a