Filed 12/20/19 P. v. Chavarin CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

HUGO RODRIGUEZ CHAVARIN,

Defendant and Appellant.

H046962

(Monterey County

Super. Ct. No. SS160826A)

Appellant Hugo Rodriguez Chavarin punched his girlfriend in the head, ripped hair out of her scalp, and held a knife to her back in front of their two children. Chavarin was charged by complaint with corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and two counts of misdemeanor cruelty to a child by endangering health (§273a, subd. (b); counts 3 & 4). Chavarin was arraigned on the complaint on August 4, 2016.

On August 16, 2016, Chavarin entered a plea of no contest to count 2, a violation of section 245, subdivision (a)(1), on the condition that he not receive a prison sentence. On September 20, 2016, the trial court suspended imposition of sentence on count 2 and placed Chavarin on formal probation for a period of three years, subject to a number of terms and conditions. Among other terms of his probation, Chavarin was ordered to report to the probation officer “when and as required.” In addition, Chavarin was ordered to complete a one-year domestic violence counseling program and to participate in “any counseling or substance abuse program the probation officer deems necessary.” Chavarin’s term of probation was scheduled to expire on September 20, 2019. Chavarin did not appeal his conviction or probationary sentence.

In December 2016, Chavarin admitted he had violated his probation by failing to report to probation as directed. Chavarin was ordered to serve 77 days in the county jail, with credit for time served of 77 days. His probation was extended until November 6, 2019.

On March 23, 2017, Chavarin was sentenced for new violations of probation, namely failing to report to probation, having contact with the victim in violation of a court order, and using controlled substances without a prescription. He was sentenced to 93 days in the county jail and was awarded 93 days of custody credits. Chavarin’s probation was reinstated on the terms and conditions previously imposed.

On June 28, 2017, Chavarin was sentenced on a violation of probation based on a new law violation. He was ordered to serve 93 days in the county jail with 93 days credit for time served, and his probation was extended until May 11, 2020.

On February 6, 2018, the trial court sentenced Chavarin for additional violations of probation, namely failure to enroll in a domestic violence program, failure to enroll in a drug program, failure to report to probation, and drug violations. The trial court reinstated Chavarin’s probation, adding the additional conditions that he complete a residential drug treatment program and serve 364 days in the county jail. The trial court awarded 90 days of actual credit for time served and 90 days of “good/time work time” for total custody credits of 180 days. Charavin agreed to waive any custody credits over 364 days and agreed that he would not receive credit toward any future jail or prison sentence for any time spent in the residential drug treatment program.

On August 17, 2018, the probation department filed an additional petition alleging Chavarin had committed a number of probation violations. The petition alleged that Chavarin had failed to report to probation as directed, to enroll in a one-year domestic violence program, and to participate in “two NA/AA meetings a week.” The petition indicated that Chavarin’s “[w]hereabouts [were] unknown.”

On February 6, 2019, Chavarin was arraigned on the violations of probation alleged in the August 2018 petition and denied them. On March 15, 2019, the trial court held a formal hearing on the alleged violations. Alexis Perez, a probation officer with Monterey County, testified at the hearing. Perez had been Chavarin’s probation officer since March 2017. Perez had met with Chavarin on May 21, 2018, and on that date had given Chavarin a referral for a one-year domestic violence class. On that date Perez had also given Chavarin a referral for NA/AA classes and directed Chavarin to provide proof at their next meeting that Chavarin had attended these classes twice weekly. At that time, Chavarin did not express any concerns about enrolling in either the NA/AA or domestic violence classes. As of the hearing date of March 15, 2019, Chavarin had not provided Perez with proof that he had enrolled in the domestic violence class or had attended any NA/AA meetings since their May 21, 2018 meeting.

After the May 21, 2018 meeting, Perez mailed Chavarin a notice directing him to appear at the probation office on August 10, 2018. Perez mailed the notice to the address that probation had on file for Chavarin. Chavarin did not report to probation on August 10, 2018.

On cross-examination, Perez stated that Chavarin had provided her with proof that he had attended 22 NA/AA meetings between February 16, 2018, and March 14, 2018 (that is, before the meeting between Perez and Chavarin on May 21, 2018). Chavarin had completed the “residential program with Sun Street” on May 21, 2018. Before Chavarin’s probation was reinstated in February 2018, Chavarin had told Perez he was having trouble paying for the domestic violence classes. Chavarin told Perez that he was working with his cousin as a painter and a handyman.

At the conclusion of the hearing, the trial court found by a preponderance of the evidence that Chavarin had willfully failed to report to probation on August 10, 2018, and had failed to enroll in the domestic violence program and to provide proof that he was attending NA/AA meetings twice weekly. The trial court revoked probation and continued the matter for sentencing.

On May 3, 2019, the parties appeared for sentencing on the probation violations. Chavarin requested that he continue on probation or that the court terminate probation without imposing a prison sentence to avoid adverse immigration consequences. The prosecutor argued that Chavarin should be sent to prison because he had committed five prior probation violations and the facts underlying his conviction were egregious.

The trial court expressed concern about its authority to terminate probation without imposing a prison sentence. The trial court stated that, even if it had the authority, it declined to do so. The trial court explained, “That’s based on the circumstances of the case even in consideration of the possible immigration consequences. [¶] I had noted earlier, and it’s been repeated today, this is a case of violence, extreme violence involving a weapon in front of the children. It had a knife involved. There is a history of non-compliance with supervision. This is the fifth violation. [¶] The defendant has shown he’s not a good candidate for supervision. So when I balance the factors in aggravation versus mitigation it is in my view a middle term case. It easily could have been an upper term case. I’m also considering the defendant’s lack of serious criminal history before this.”

The trial court terminated probation, imposed a three-year prison term on count 2, a violation of section 245, subdivision (a)(1), and awarded 201 actual days and 200 good time/work time credits, for a total of 401 days credit for time served. The trial court imposed the previously-suspended restitution fund fine (§ 1202.4, subd. (b)) and imposed and suspended an additional restitution fine (§§ 1202.44, 1202.45).

Chavarin filed a timely notice of appeal, which is his first appeal of this conviction. Chavarin sought and received a certificate of probable cause. We appointed counsel to represent Chavarin on appeal. Appellate counsel filed an opening brief stating the case and the facts but raising no specific legal issues. Counsel has declared that he notified Chavarin both of his intention to request independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende) and of Chavarin’s right to file written argument on his own behalf. We notified Chavarin of his right to submit written argument on his own behalf but have received no response from him.

We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. We conclude there is no arguable issue on appeal and affirm the judgment. However, we note the abstract of judgment incorrectly indicates that Chavarin was convicted of section 245, subdivision (a)(4), whereas he was actually convicted of section 245, subdivision (a)(1). We therefore order the abstract of judgment corrected.

III. DISPOSITION

The judgment is affirmed. The trial court shall amend the abstract of judgment to reflect that Chavarin was convicted of a violation of Penal Code section 245, subdivision (a)(1). The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

______________________________________

Danner, J.

WE CONCUR:

____________________________________

Elia, Acting P.J.

____________________________________

Grover, J.

H046962

People v. Chavarin