People v. Gonzalez CA2/8

Filed 10/6/15 P. v. Gonzalez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B260440

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA055652) v.

ERIC GONZALEZ, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Daviann L. Mitchell, Judge. Affirmed.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent.

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Eric Gonzalez, Jr. (defendant) appeals from the order sentencing him to three years in county jail following revocation of his probation. His sole contention is that the trial court erred in basing its sentencing choice on defendant’s poor performance on probation, which was a circumstance that did not exist at the time probation was granted. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A family argument led to defendant’s arrest in March 2012. In May 2012, he pled no contest to felony resisting arrest (Pen. Code, § 69). According to a probation report dated May 10, 2012, defendant had been the subject of a sustained Welfare and Institutions Code section 602 petition in October 2010, based on his possession of a weapon at school. As an adult, he was convicted of misdemeanor gun possession in August 2011. He was on probation in that case when he was arrested for possession of a controlled substance in February 2012. Defendant was still on probation in the gun possession case and the drug case was still pending when he engaged in the conduct underlying his conviction in this case. The probation department recommended the high term based on aggravating circumstances that included the number and increasing seriousness of defendant’s prior convictions and his unsatisfactory performance on probation. Notwithstanding the probation department’s recommendation, the trial court suspended imposition of sentence and placed defendant on three year’s probation. According to a probation report dated December 19, 2012, defendant was in violation of several conditions of his probation. The report states: “It appears that the defendant is not taking the court’s orders seriously and perhaps a suitable time in custody will be sufficient to alert the defendant that further non-compliance will not be tolerated.” At a hearing in March 2013, defendant admitted violating probation. Finding defendant in violation of the conditions requiring him to report to his probation officer and to complete community labor and drug rehabilitation programs, the trial court revoked his probation. In exchange for a waiver of all “back-time” (i.e. pre-sentence custody credits),