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Filed 3/23/21 P. v. Benedict CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA ALLEN BENEDICT,

Defendant and Appellant.

C091708

(Super. Ct. No. 18FE002865)

Appointed counsel for defendant Joshua Allen Benedict filed an opening brief 

setting forth the facts of the case and asking this court to review the record to determine 

whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 

436.) Defendant filed a supplemental brief raising several issues. After reviewing the 

entire record, we affirm the judgment.

We provide the following brief description of the facts and procedural history of 

the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
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FACTUAL AND PROCEDURAL BACKGROUND

On February 12, 2018, Rancho Cordova police officers encountered defendant 

with his girlfriend after receiving a call of domestic violence. Deputies tried to separate 

defendant from the potential victim and defendant became noncooperative, started 

yelling, and refused to comply. The detainment turned into a struggle on the ground

before defendant eventually was arrested. On April 4, 2018, while on bail, defendant 

again violently resisted an officer or officers after violating a protective order. This 

included trying to get out of the police car and rolling away from officers, requiring them 

to place him in maximum restraints. Defendant was charged with two felony counts of 

violently resisting an officer or officers (Pen. Code, § 69)1 and two misdemeanor counts 

of violating a protective order (§ 273.6, subd. (a)). It also was alleged that defendant

committed the second resisting an officer or officers offense while out on bail. 

(§ 12022.1.) 

In May 2018, the court found defendant competent to stand trial, and denied a

Marsden2 motion to remove his attorney. In August 2018, defendant’s counsel filed a

Pitchess3 motion for discovery of law enforcement personnel documents related to 

defendant’s arrests. 

On September 10, 2018, defendant pleaded guilty to both counts of violently 

resisting an officer of officers, one violation of a protective order, and the bail 

enhancement. The court sentenced defendant to the stipulated term of four years eight 

months, with the last two years and eight months suspended pending successful 

completion of mandatory supervision. The court also imposed a no contact order in favor 

1 Undesignated statutory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118.

3 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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of J.R., the mother of defendant’s daughter. The second violating a protective order

charge was dismissed. 

On November 25, 2019, a petition for probation revocation was filed. On 

February 21, 2020, the court held a hearing on the violation. J.R. testified defendant and 

his girlfriend walked by J.R.’s boyfriend’s house, where J.R. was spending the night, and 

defendant said, “Now I know where you live.” The pair then left but returned 10 to 15 

minutes later; J.R. called police. J.R.’s boyfriend, S.N., then testified to a substantially 

similar series of events, including hearing defendant say, “Now I know where you live

at.” Sacramento County Sheriff’s Detective Ruben Ledesma testified he responded to 

J.R.’s call and arrested defendant, who again violently resisted. 

The court found by a preponderance of the evidence that defendant violated his

probation. The court was persuaded that defendant said, “Now I know where you live,” 

which “clearly violates the protective order,” so it found “him in violation of 

[probation].” 

The sentencing hearing was held later the same day. Detective Ledesma testified 

that defendant threatened to put a “bullet through [J.R.’s] head.” The Sacramento County 

Sheriff’s Department booking supervisor also testified that defendant said, “When I bond 

out, I’m going to go on a killing spree.” Defense counsel submitted mental health 

records in mitigation. The court reiterated that it found defendant violated probation by 

failing to abide by the restraining order. The court also found in aggravation defendant’s 

statements threatening J.R. It then revoked probation and ordered defendant to fulfill his 

entire term. The court also dismissed two other alleged probation violations. 

Defendant appealed from “a contested violation of probation” without a certificate 

of probable cause. 

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief that sets forth the facts and procedural history of the case and asks this court to 
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review the record and determine whether there are any arguable issues on appeal. 

(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right 

to file a supplemental brief within 30 days from the date the opening brief was filed.

Defendant filed a supplemental brief raising several issues. Most of defendant’s 

challenges relate to events occurring before his plea in 2018, which are both untimely and 

unappealable without a certificate of probable cause, which he did not obtain. (Cal. 

Rules of Court, rules 8.304(b), 8.308(a); § 1237.5; People v. Panizzon (1996) 13 Cal.4th 

68, 74-78.)

Defendant’s challenges relating to the probation violation hearing are properly 

raised but we find they lack merit. First, he questions the veracity of the evidence 

presented at the probation hearing. To the extent defendant is challenging the sufficiency 

of the evidence supporting the trial court’s finding of a probation violation, we disagree. 

“The standard of proof in a probation revocation proceeding is proof by a preponderance 

of the evidence,” and “[w]e review a probation revocation decision pursuant to the 

substantial evidence standard of review” according “great deference” to the trial court’s 

decision. (People v. Urke (2011) 197 Cal.App.4th 766, 772, 773.) “ ‘Even when there is 

a significant amount of countervailing evidence, the testimony of a single witness that 

satisfies the standard is sufficient to uphold the finding.’ [Citation.]” (People v. Lucero

(2019) 41 Cal.App.5th 370, 411.) There was substantial evidence here because two 

witnesses testified to defendant saying to J.R., “Now I know where you live.” This was a 

violation of the protective order and consequently a violation of his probation.

Second, defendant contends his counsel failed to challenge the prosecutor’s 

witnesses and call witnesses that defendant asserts would testify favorably for him. To 

the extent he is claiming ineffective assistance of counsel, we reject the claim. To 

establish ineffective assistance of counsel, the defendant has the burden of demonstrating 

that counsel’s performance was deficient because it fell below an objective standard of 

reasonableness under prevailing professional norms and he or she was prejudiced by that 
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deficiency. (People v. Lopez (2008) 42 Cal.4th 960, 966.) “ ‘Unless a defendant 

establishes the contrary, we shall presume that “counsel’s performance fell within the 

wide range of professional competence and that counsel’s actions and inactions can be 

explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on 

why counsel acted or failed to act in the manner challenged,” an appellate claim of 

ineffective assistance of counsel must be rejected “unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation.” [Citations.]’ ” (Ibid.) “A claim of ineffective assistance in such a case is 

more appropriately decided in a habeas corpus proceeding. [Citation.]” (People v. 

Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v. Jones (2003) 29 Cal.4th 

1229, 1254 [ineffective assistance claims properly resolved on direct appeal only where 

record affirmatively discloses no rational tactical purpose for counsel’s act or omission].)

We conclude defendant has failed to carry his burden to establish that trial counsel 

provided inadequate representation during the probation violation hearing. The record is 

silent as to trial counsel’s strategy in examining the prosecution’s witnesses and 

defendant’s discussion with counsel, if any, regarding potential defense witnesses. 

Beyond the statements in defendant’s supplemental brief, nothing in the record supports 

his factual representations regarding potential witnesses and unexplored impeachment of 

the prosecution’s case. We will not consider facts provided for the first time on appeal. 

(See People v. Pena (1972) 25 Cal.App.3d 414, 421-422, disapproved on other grounds 

by People v. Duran (1976) 16 Cal.3d 282, 292.) Defendant’s ineffective assistance of 

counsel claim thus fails on direct appeal and is more properly raised in a habeas corpus 

petition.

Having undertaken an examination of the entire record pursuant to Wende, we find 

no arguable error that would result in a disposition more favorable to defendant. 

Accordingly, we affirm the judgment. 
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DISPOSITION

The judgment is affirmed.

 KRAUSE , J.

We concur:

 BLEASE , Acting P. J.

 ROBIE , J.