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People v. Chavez5/28/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Bibian Juan Chavez appeals the judgment (order revoking probation) entered after conviction following plea of no contest to assault with a deadly weapon in which Chavez personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) The trial court sentenced Chavez to a term of five years in state prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 1999, Chavez approached Salvador Hernandez near the corner of Azusa Way and Hurley Street and demanded money. Although Chavez did not see a knife, Chavez cut Hernandez's right elbow and stabbed Hernandez in the left rib cage.
Chavez pleaded no contest to assault with a deadly weapon with a great bodily injury enhancement and received a suspended five-year state prison term on condition Chavez serve 365 days in the county jail and complete a 52-week anger management program.
On July 5, 2000, Chavez admitted violation of probation based upon a conviction for driving under the influence . Chavez waived previous custody credits and was ordered to serve 365 days in the county jail. After Chavez's release, he failed to report to the probation officer and a warrant for his arrest issued in the driving under the influence case on January 23, 2002. Chavez was arrested on that warrant in Tampa, Florida.
At a violation of probation hearing in this case on December 4, 2002, deputy probation officer (DPO) Tom Hope testified Chavez's probation file reflects Chavez was instructed to report to the probation officer as directed and notify the probation office before changing address. Hope reviewed Chavez's probation file, which is kept in the ordinary course of business, and found Chavez was required to report monthly either in person or by mail-in report. Chavez last made contact with the probation officer by mail on August 1, 2001, had paid $155 toward his probation obligation of $2,498, and had not provided proof of completion of an anger management program.
In an interview after Chavez was arrested on the warrant, Chavez told Hope that Chavez's probation officer, DPO Robert Lopez, had granted Chavez permission over the telephone to move to Fresno. Chavez did not indicate he had requested permission to leave California or that Chavez told Lopez about the move to Florida. Hope conceded the probation file indicated Lopez had granted Chavez permission to travel to Fresno every two weeks to visit Chavez's son. However, there was no mention in the report of verbal permission to move to Fresno.
Chavez testified in his own defense that he enrolled in anger management and completed four classes but, after Chavez's mother died, Chavez became homeless and could no longer afford the classes. Chavez moved to Fresno because a peace officer had narrowly prevented Chavez from being set upon by a group of La Puente gang members who threatened it would be worse for Chavez the next time. Chavez claimed he spoke to Lopez about the gang problem and Lopez verbally expanded the permission to visit Fresno to permission to live in Fresno. Chavez thereafter moved to Tampa to live with his brother. Chavez testified he "thought [he and DPO Lopez] talked about [whether Chavez] could go to Florida in the future and [Lopez] said yes, and I did have permission to go visit my son in Fresno . . . ." Chavez claimed he sent
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