People v. Anaya CA2/2

Filed 8/2/16 P. v. Anaya CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B266965

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA298916) v.

SABINO DIAZ ANAYA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Dorothy B. Reyes, Judge. Affirmed.

Donna Ford, 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, Shawn McGahey Webb and Ilana Herscovitz, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2005, appellant Sabino Diaz Anaya was charged with two felony counts of lewd acts upon a child under 14 years of age (Pen. Code, § 288, subd. (a)).1 Appellant pled nolo contendere to count 1, and the trial court dismissed count 2. In June 2006, the court suspended imposition of sentence and placed appellant on formal probation for five years. Appellant was immediately taken into federal custody and deported to Mexico in the fall of 2006. The trial court revoked his probation and issued a bench warrant. Nine years later in 2015, he was arrested trying to reenter the United States. Following a formal probation violation hearing, the court found appellant in violation of probation and sentenced him to three years in state prison. Appellant contends the trial court abused its discretion in terminating probation because he did not willingly violate the terms of his probation, having been deported. We affirm. BACKGROUND Factual History On or about July 18, 2005, appellant visited the home of seven-year-old Tiffany R. (Tiffany), who lived with her mother and grandmother. He had known her family for more than 15 years. After her mother left for work, he went into her bedroom, sat on her bed, touched her face and feet, put his bare hands on her vagina, and played with his penis. Her cousin, 10-year-old A.L., told her own mother that appellant had also touched her vagina once under her clothing. Appellant was 56 years old at the time of the sexual assaults. He had been a pipe cutter for 25 years, earned $10.50 an hour, and paid $500 in rent. Procedural History On March 3, 2006, appellant entered a plea of nolo contendere to count 1 (lewd acts with a child, Tiffany), and the trial court dismissed count 2 (lewd acts with a child, A.L.). The court advised appellant that if he was not a United States citizen, the conviction would result in deportation and exclusion.