P. v. Jones CA1/1

Filed 7/29/13 P. v. Jones CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A136724 v. JEFFREY JONES, (San Francisco City & County Super. Ct. No. 206448) Defendant and Appellant.

After revoking probation, the trial court sentenced defendant Jeffrey Jones to an aggravated, five-year prison term for second degree robbery (Pen. Code, § 211).1 Defendant asserts the trial court erroneously considered the nature of his probation violation when selecting an aggravated term and erroneously sentenced him without a sufficiently current probation report. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On August 10, 2008, defendant and four other males attacked and robbed two individuals in the SOMA area of San Francisco. The attackers punched the victims in the face and stole their cell phones, some cash, a wallet, and car keys. On August 25, defendant, along with two codefendants, pleaded guilty to second degree robbery (§ 211) pursuant to a negotiated disposition. On September 16, the trial court suspended imposition of sentence and placed defendant on five years‘ probation. This disposition

1 All further statutory references are to the Penal Code unless otherwise indicated.

1

was in accord with the parties‘ plea agreement and the September 16 probation report, which concluded defendant‘s youth, lack of substance abuse, and job and education prospects, allowed for probation despite the fact the offense involved ―an unprovoked and overt act of violence resulting in physical injuries.‖ Two years later, in October 2011, while still on probation, defendant accosted an individual near the intersection of Powell and Market Streets in San Francisco. Defendant slapped the victim‘s hand, knocking his cell phone to the ground, where it broke into pieces. Defendant nevertheless walked off with the phone. The victim followed, was able to flag down a police officer and thus ensured defendant‘s arrest. The district attorney moved to revoke defendant‘s probation. The probation department prepared a supplemental report on November 18, recommending revocation. At the revocation hearing, in January 2012, the trial court received testimony about the 2011 incident and other alleged probation violations. The court revoked probation, finding defendant was responsible for the October 2011 incident, had been out of state without permission, had been disruptive in custody, and had been arrested ―out of state‖ and later ―out of county.‖ In late April, defendant‘s counsel declared a doubt as to his client‘s competency to stand trial, proceedings were suspended, and sentencing on the underlying robbery conviction, delayed. Proceedings resumed on May 30, after the court reviewed a 10-page psychological report evaluating defendant‘s mental condition and finding him competent. At hearings in June and July, sentencing was again continued. At each of these hearings, the court requested a ―supplemental report on credits,‖ requests defendant did not comment upon. In fact, from shortly after his probation was revoked until he was sentenced on the underlying conviction, the probation department prepared seven supplemental reports on credits: on February 10, 2012, March 2, 2012, March 16, 2012, April 27, 2012, July 6, 2012, August 10, 2012, and September 7, 2012. Defendant, himself, requested nothing from probation.