Filed 12/16/19 P. v. Frazier 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

ANTHONY DAVON FRAZIER,

Defendant and Appellant.

A158034

(Napa County

Super. Ct. No. 19CR001929)

The trial court found that defendant Anthony Davon Frazier was in violation of parole, revoked and reinstated his parole, and ordered him to serve 90 days in jail with credit for 24 days served and 24 days good conduct. Defendant appealed from the order revoking and reinstating parole. His appointed counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplement brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the order and judgment.

BACKGROUND

Defendant was convicted of one count of rape by force or fear of bodily injury (Pen. Code, § 261, (a)(2)) and one count of assault with a firearm (id., § 245) in November 2011, and he was subsequently sentenced to nine years in prison. He was released on parole in October 2017.

Defendant’s conditions of parole included, among other things, a no-contact order as to the victim J.F. and a no-weapons condition which provided, “ ‘You shall not own, use, have access to, or have under your control: (b) any weapon as defined in state or federal statutes, or any instrument or device which a reasonable person would believe to be capable of being used as a weapon,’ ” and “ ‘(c) any knife with a blade longer than two inches, except kitchen knives which must be kept only in the kitchen of your residence, and knives related to your employment, which may be used and carried only in connection with your employment.’ ”

In June 2019, the victim contacted the parole division and informed agents she had received a “Face Time Call” from defendant the previous day. Parole agents contacted defendant at his residence and performed a parole search. The agents found a “vehicle key attached to a pink wrist band” in defendant’s right front pants pocket. Defendant stated the vehicle belonged to his fiancée and the two had “switched vehicles for the day.” Inside the car, “in the front drivers side door armrest/handle” and in immediate view, agents discovered a “can of Dragon Fire Red Pepper Defense Spray” and a knife with a blade two and a half inches in length.

Defendant’s parole officer filed a petition for revocation of parole, alleging defendant violated the terms and conditions of his release and recommended he be returned to custody for 135 days.

A hearing on the petition for revocation of parole was conducted. At the start of the hearing, defense counsel requested a jury as he argued defendant was “entitled to a jury determination of the facts . . . in this matter if it is going to lead to further incarceration,” under United States v. Haymond (2019) __ U.S. __ [139 S.Ct. 2369] (Haymond). The trial court denied the request, explaining Haymond was inapplicable.

The parole agents testified as to the search and to what defendant said at the time, namely that the car was his fiancée’s, he had just driven back to his house, the pepper spray and knife belonged to his fiancée, and he “knew” the blade of the knife was not longer than two inches. Defendant’s fiancée also testified that both the pepper spray and knife belonged to her and she did not know defendant was not allowed to have a knife over two inches long.

The court found defendant in violation of the no-knife condition. Given that this was defendant’s third parole violation, the parole officer recommended a sentence of 135 days. The court imposed a sentence of only 90 days, with credit for 48 days.

DISCUSSION

Upon review of the record, we discern no arguable issues. Defendant was ably represented by counsel at all times during the parole revocation proceeding. He had a full and fair opportunity to present his case to the court. The court did not err in denying defendant’s jury request. (See Haymond, supra, __ U.S. __ [139 S.Ct. 2369, 2378] [holding application of tit. 18 U.S.C. § 3853(k) was unconstitutional because it increased the mandatory minimum based on a finding of guilty by the court without a jury finding of proof beyond a reasonable doubt].) The court’s finding that defendant violated the terms of his parole is supported by the record. (See People v. Urke (2011) 197 Cal.App.4th 766, 772 [standard of proof in probation revocation proceedings is preponderance of the evidence].)

DISPOSITION

The judgment and order appealed from are affirmed.

 

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Sanchez, J.

A158034, People v, Frazier