IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DERON CHEEVES, DEFENDANT AND APPELLANT.
(San Francisco County Super. Ct. Nos. 204282 & 200730)
The opinion of the court was delivered by: Jenkins, J.
P. v. Cheeves
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Deron Cheeves filed an appeal of the judgment imposed after the trial court revoked his probation on two prior offenses and sentenced him to three years in state prison. Defendant's appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, in which he raised no issue for appeal and asked this court to independently review the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Counsel attested that defendant was advised of his right to file a supplemental brief in a timely manner. Defendant has not filed a supplemental brief. Consequently, we have examined the entire record in accordance with People v. Wende, supra, and conclude that no arguable issue exists on appeal. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2006, the San Francisco District Attorney (DA) filed a felony complaint in case number 200730 charging defendant with carrying a concealed weapon in a vehicle, a Glock .40 caliber firearm, (Penal Code, section 12025, subd. (a)(3))*fn1 and carrying a loaded firearm in a vehicle (§12031(a)(1)). Defendant subsequently pleaded guilty to carrying a concealed weapon in a vehicle and the other charge was dismissed. On February 7, 2007, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years, subject to the condition that he obey all laws.
In December 2007, the DA filed a felony complaint in case number 204282 charging defendant and four co-defendants with commercial (second degree) burglary (§ 459) and grand theft (§ 487, subd. (a)). In February 2008, defendant pleaded guilty to commercial burglary and the other charge was dismissed. On March 3, 2008, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years, subject to the condition that he obey all laws. At the same hearing, the trial court also sustained the DA's previously-filed motion to revoke probation in case number 200730, and reinstated probation in that case on the same terms and conditions.
On January 8, 2009, shots were fired at the funeral of a known Eddy Rock gang member taking place at a Baptist Church on Golden Gate and Webster Streets in San Francisco. Police on patrol in the vicinity of the funeral gave chase to the suspects. Defendant and two other males were apprehended in the pursuit and taken into custody. Defendant was booked on various charges, including assault, criminal street gang activity and attempted homicide.
On January 13, 2009, the probation officer filed a motion to revoke defendant's probation in case numbers 200730 and 204282 based on the new charges filed against defendant in connection with the shooting incident at the funeral. A preliminary hearing on the new charges was held between February 11 and April 3, 2009. Prior to receiving evidence at the preliminary hearing, the trial court ruled it would hear the motion to revoke concurrently with the preliminary hearing. Additionally, the court stated that after the preliminary hearing it would schedule a further hearing to allow defense counsel a full and fair opportunity to present evidence on behalf of defendant in opposition to the motion to revoke. At the conclusion of the preliminary hearing, the trial court dismissed those counts charging defendant and his co-defendants with attempted murder and assault with a deadly weapon and held defendant to answer on charges of criminal street gang activity, discharging a firearm in a grossly negligent manner, felon in possession of a firearm, and possession of an assault weapon. The court also scheduled a hearing on the bifurcated portion of the motion to revoke probation in case numbers 200730 and 204282.
The hearing on the bifurcated portion of the motion to revoke probation was held on July 30, 2009. The DA presented testimony from Joseph Wykoff, a private security guard who was on duty on the day of the shooting at the Prince Hall Housing Projects (Prince Hall). Prince Hall is bounded by Golden Gate and McAllister to the north and south, respectively, and Webster and Fillmore to the east and west, respectively. Wykoff testified that within a minute or so of hearing shots fired he saw four black males running diagonally across the courtyard of Prince Hall in a southwesterly direction. Three of the men ran close together and one was lagging behind. One of the three men in front was carrying a gun. When they reached the back fence of a residence, the man carrying the gun passed it from his right hand to his left hand and dropped it over the fence.
Wykoff further testified that he saw the four men run into a two-storey parking lot nearby where he lost sight of them. Wykoff then saw the men emerge from the parking lot and run back in his direction. At that point, a plainclothes officer*fn2 detained one of the men at gunpoint and ordered him down on the ground. People then began to flood into the courtyard from all directions, there were police everywhere, and Wykoff was concerned there was going to be a riot. Wykoff alerted police to the whereabouts of the weapon and was then accompanied to the police station. At the police station, Wykoff wrote a statement in which he stated that he saw a plain-clothes police officer (Griffin) arrest the man who threw the gun over the fence.
Officer Griffin also testified at the bifurcated portion of the revocation hearing. After Wykoff wrote his statement Griffin spoke to him about whether he could identify the person who dropped the gun over the fence. Griffin gave Wykoff the police department's cold-show admonition before showing him three individuals, one at a time. When Wykoff saw defendant, he immediately said, "He is the one. He is the one who threw the gun." After receiving the testimony of the witnesses and entertaining argument of counsel, the trial court took the matter under advisement in order to review a CD containing video footage from security cameras positioned throughout Prince Hall.
The trial court announced its ruling at a hearing on August 14, 2009. The trial court stated that the CD contained segments from four different security cameras, none of which captured the entire incident from start to finish. The court also noted that nothing in the footage from the security cameras impeached Wykoff's testimony, and that none of the footage involved the scene or the area where the gun was tossed. The court acknowledged that although defendant was not the shooter, he was acting in concert with the others and the gun could easily have been handed off to him at some point The court found Wykoff's testimony to be credible and "very believable."
Thereafter, the court concluded that the DA had shown by a preponderance of the evidence that defendant had violated the terms of his probation and revoked probation in case numbers 200730 and 204282. The court sentenced defendant to two years in state prison in case number 200730 and the aggravated term of three years in state prison in case number 204282, the sentences to run concurrently. In imposing the aggravated term of three years in case number 204282, the trial court specifically referred to and relied upon the presentence report prepared in connection with the original grant of probation, which listed four circumstances in aggravation and none in mitigation. Defendant filed a timely notice of appeal on September 1, 2009.*fn3
Neither appointed counsel nor appellant has identified any issue for our review. Upon our own independent review of the entire record, we agree none exists. (People v. Wende, supra, 25 Cal.3d 436.)
A trial court may revoke probation if the facts supporting it are proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 446-447.) Great deference is afforded to the trial court's determination of whether to revoke probation. (Id. at p. 445; People v. Self (1991) 233 Cal.App.3d 414, 417.) The trial court's finding that there was sufficient evidence to revoke probation is reviewed for an abuse of discretion. (People v. Self, supra, 233 Cal.App.3d at p. 417.) No abuse of discretion appears on this record.
Further, upon revocation of probation, the trial court lawfully pronounced judgment by imposing a prison term of three years on his underlying conviction for second degree burglary in violation of section 459. (See §§ 18, 461 and 1203.2, subd. (c).) Moreover, the record shows that the trial court imposed the aggravated term of three years on defendant's underlying burglary conviction based on "circumstances existing at the time probation was granted" and did not consider "subsequent events . . . in selecting the base term. . . ." (California Rules of Court, rule 4.435(b)(1).) Having ensured appellant has received adequate and effective appellate review, we affirm the trial court's judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
The judgment is affirmed.
We concur: McGuiness, P. J. Pollak, J.