Filed 1/5/21 P. v. Wallace CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A157757
v.
MICHAEL WALLACE, (Napa County
Defendant and Appellant. Super. Ct. No. CR181962)
This is an appeal from judgment after the trial court revoked and
reinstated with certain modifications the probation of defendant Michael
Wallace following his commission of two probation violations. Under this
judgment, the trial court ordered defendant to, among other things, serve 90
days in jail and pay for and successfully complete an anger management
program. After defendant filed a timely notice of appeal, appellate counsel
was appointed to represent him. Appointed counsel has filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende), in which he raises
no issue for appeal and asks this court for an independent review of the
record. (See People v. Kelly (2006) 40 Cal.4th 106, 123–124 (People v. Kelly).)
Counsel attests that defendant was advised of his right to file a supplemental
brief in a timely manner, but defendant has not exercised this right.
1
We have examined the entire record in accordance with People v.
Wende. For reasons set forth below, we agree that no arguable issue exists on
appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2019, a petition to revoke defendant’s probation was
filed, alleging that he failed to obey all laws by committing a criminal threat
(Pen. Code, § 422).1 On March 1, 2019, a second petition to revoke
defendant’s probation was filed, this one alleging that he failed to
successfully complete an outpatient treatment program.
On May 30, 2019, a contested hearing was held on these petitions.
C.M., a group facilitator for GEO Reentry Services, testified regarding a
Cognitive Behavior Intervention for Substance Abuse group meeting she led
on January 16, 2019, during which defendant made the alleged criminal
threat. With about 12 individuals present, defendant became “[b]itter, angry
[and] hostile” during a group discussion.2 After making several negative
comments, defendant looked at C.M. with an “odd facial expression” and said
“people who hurt you, they can get what’s coming to them. . . . [S]ome people
even get shot.” As he said this, defendant, looking at C.M., made a gun with
his fingers and mimicked a shooting motion. C.M. was struck not only by
defendant’s facial expression but also by his tone of voice, which she
described as “very precise, very clear, very intentional.”
1 Unless otherwise stated, all statutory citations herein are to the Penal
Code.
C.M. explained that defendant’s anger toward her arose several weeks
2
prior to this meeting, when she told him he was not eligible for promotion to
“after care” because he lacked stable housing (even with a mailing address).
2
Scared, C.M. adjourned the meeting early and spoke with her
colleagues, who recommended calling the police, which they did.3 Two days
later, defendant was discharged from the outpatient treatment program
based on the January 16 incident. A few weeks later, C.M. filed a restraining
order against defendant.
Following the contested hearing, the trial court found true the
allegations that defendant violated probation by failing to obey all laws and
being discharged from the outpatient treatment program. On July 3, 2019,
the court then issued the order under challenge, revoking and reinstating
defendant’s probation with modified terms and conditions, including serving
90 days in jail and completing an anger management program.
On July 5, 2019, defendant timely appealed.
DISCUSSION
Neither appointed counsel nor defendant has identified any issue for
our review. Upon our own independent review of the record, we agree none
exists. (People v. Wende, supra, 25 Cal.3d 436.) The trial court revoked
defendant’s probation after finding that he violated its terms and conditions
by making a criminal threat in violation of section 422 and failing to complete
the outpatient treatment program. The trial court then reinstated probation
with the following modified terms and conditions imposed on defendant:
(1) service of a 90-day jail term (with two days of actual custody credits);
(2) orders to enroll in, pay for and successfully complete an anger
management program and to refrain from using or possessing marijuana or
3 C.M. did not think defendant would actually harm her but noted
“that’s always a possibility.”
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illegal drugs or substances;4 (3) re-referral to the “Drinking Driver Program”;
and (4) payment of $250 in indigent defense reimbursement fees, with a court
waiver of $150 following a financial hearing.
Defense counsel did not object to these specific modifications. In any
event, the court’s judgment was appropriate. “ ‘[T]he court may revoke and
terminate . . . probation if the interests of justice so require and the court, in
its judgment, has reason to believe from the report of the probation officer or
otherwise that the person has violated any of the conditions of his or her
probation . . . or has subsequently committed other offenses, regardless
whether he or she has been prosecuted for such offenses.’ (Pen. Code,
§ 1203.2, subd. (a).)” (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)
“Revocation of probation is not part of a criminal prosecution, and therefore
the full panoply of rights due in a criminal trial does not apply to probation
revocations. . . . The standard of proof in probation revocation proceedings is
proof by a preponderance of the evidence.” (Ibid.)
Here, the court found defendant committed a criminal threat after a
hearing at which C.M., the victim of his threat, gave competent testimony
that sufficed to prove a violation of section 4225 by a preponderance of the
4 Defendant was also ordered to provide his probation officer with
verification of any prescribed controlled substance within 72 hours of its
prescription.
5 Section 422 provides five elements: “(1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great bodily
injury to another person,’ (2) that the defendant made the threat ‘with the
specific intent that the statement . . . is to be taken as a threat, even if there
is no intent of actually carrying it out,’ (3) that the threat—which may be
‘made verbally, in writing, or by means of an electronic communication
device’—was ‘on its face and under the circumstances in which it [was] made,
. . . so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, [sic] a gravity of purpose and an immediate prospect of
execution of the threat,’ (4) that the threat actually caused the person
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evidence. Nothing more was required. (See People v. Avila (2009) 46 Cal.4th
680, 703 [testimony from a single competent witness is sufficient proof of any
fact].)
Under these circumstances, we uphold the trial court’s decision to
revoke defendant’s probation and reinstate it with a few modified terms,
including serving 90 days in jail; refraining from possessing or using
marijuana or illegal substances; and enrolling in, paying for, and completing
an anger management program. (See People v. Segura (2008) 44 Cal.4th 921,
932 [“During the period of probation, the court may revoke, modify, or change
its order suspending imposition or execution of the sentence, as warranted by
the defendant’s conduct. (§§ 1203.2, 1203.3.)”].)
Having ensured defendant received adequate and effective appellate
review, the July 3, 2019 order revoking and reinstating defendant’s probation
with certain modifications stands. (People v. Kelly, supra, 40 Cal.4th at pp.
117–119; People v. Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
threatened ‘to be in sustained fear for his or her own safety or for his or her
immediate family’s safety,’ and (5) that the threatened person’s fear was
‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th
221, 227–228.)
5
_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Fujisaki, J.
A157757/People v. Michael Wallace
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