Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of Los Angeles County Super. Ct. No. BA224249, Marsha N. Revel, Judge.
Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZELON, J.
Juan Beltran appeals from an order revoking his probation and a judgment executing his previously suspended sentence.
On December 5, 2001, Beltran was charged by information with second degree burglary (Pen. Code, § 459 – count 1), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a) – count 2), possession of cocaine for sale (Health & Saf. Code, § 11351) – count 3) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5 – count 4). As to each count the information further alleged that Beltran had served seven separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)).
On January 31, 2002, Beltran moved to have his appointed counsel relieved (People v. Marsden (1970) 2 Cal.3d 118). The trial court heard and denied the motion. On February 5, 2002, Beltran waived his constitutional rights and entered a negotiated plea of no contest to counts 2 and 4 and admitted three of the prior prison term enhancement allegations. Pursuant to the plea agreement, Beltran was sentenced to an aggregate state prison term of eight years eight months, consisting of the five-year upper term for possession of cocaine base for sale (count 4), plus eight months or one-third the two-year middle term for unlawfully driving or taking a vehicle (count 2), plus three years for the one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
The trial court suspended execution of sentence and placed Beltran on three years of formal probation, on condition he serve 365 days in county jail. Beltran was awarded 136 days of presentence credit (91 actual days and 45 days of conduct credit). A laboratory fee of $50 (Health & Saf. Code, § 11372.5, subd. (a)) was imposed, as well as a restitution fine of $1,600 (Pen. Code, § 1202.4, subd. (b)), of which $600 was stayed pending Beltran’s completion of probation. The remaining counts and special allegations were dismissed on the People’s motion.
On November 30, 2004, the trial court summarily revoked Beltran’s probation and issued a bench warrant after the probation department reported he had failed to maintain contact with his probation officer as required. On October 31, 2005, Beltran was remanded into custody.
A probation revocation hearing was held on December 16 and December 30, 2005, and on February 10, 2006. Deputy Probation Officer Melvin Black testified that, according to probation department records, Beltran never reported to his probation officer after being placed on probation on February 5, 2002, and his whereabouts were unknown until his October 24, 2005 arrest on the bench warrant. On that date he was taken into custody by the Glendale Police Department for allegedly selling a controlled substance (Health & Saf. Code, § 11379). Black testified his records also showed Beltran was detained by federal immigration authorities on September 2, 2004 for illegal entry into the United States, and he was deported on September 30, 2004. Beltran told Black he was transferred from county jail (on or after February 5, 2002) to federal custody for “a federal probation violation” for which he then served three years in federal prison in Arizona, before being released on January 5, 2005 to Houston, Texas. Beltran returned to Los Angeles on October 21, 2005, lost his wallet and went to the Department of Motor Vehicles.
Glendale Police Department Officer Cesar Castro testified on October 24, 2005, he conducted a traffic stop of a car Beltran was driving. A female passenger was in the front seat. Just before Beltran stopped his car, he reached under the seat in an effort to conceal something. Beltran was unable to produce a driver’s license or proof of insurance. Castro searched under the driver’s seat and found a glass pipe and some rock cocaine. Under the passenger seat Castro discovered a black plastic bag. Inside the bag were six baggies containing rock cocaine and one baggie containing methamphetamine. Castro searched the glove compartment and recovered a pay and owe sheet that in his experience is used by drug sellers to record outstanding balances owed by customers. Castro also found a scale in the car. Following Beltran’s arrest, Castro recovered approximately $446 in his shirt pocket.
Beltran testified in his own defense that after his plea he was taken into federal custody and incarcerated in Arizona, where he remained until October 21, 2005, when he was transported to Houston, Texas and released. In Los Angeles, Beltran went to the Department of Motor Vehicles to inquire about a letter he had received while in federal custody. Beltran was in Los Angeles with his wife for two days before he went to Glendale and was arrested on October 24, 2005. Beltran acknowledged at the time of his plea, the trial court told him to report to the probation department within 48 hours of his release from custody. He also acknowledged the court told him to report to the probation department within 24 hours of his (lawful) reentry into the United States if he were deported. However, Beltran denied having been deported after being placed on probation in this case.
At the conclusion of the hearing, the trial court determined Beltran had violated his probation by failing to report to the probation department without sufficient excuse. On October 12, 2006, the trial court declined to reinstate probation and ordered executed the previously suspended state prison sentence of eight years eight months. Beltran was awarded 894 days of presentence credit (718 actual days, and 176 days of conduct credit). The trial court also imposed a $1,600 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $50 laboratory fee (Health & Saf. Code, § 11372.5) with a penalty assessment totaling $85 (Pen. Code, § 1464, Gov. Code, § 76000). The trial court imposed and suspended a $1,600 parole revocation fine (Pen. Code, § 1202.45). Beltran filed a timely appeal but did not obtain a certificate of probable cause.
We appointed counsel to represent Beltran on appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On July 20, 2007, we advised Beltran that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date. We have examined the entire record and are satisfied that Beltran’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.) However, because Beltran pleaded no contest and failed to obtain a certificate of probable cause, his notice of appeal is not operative to challenge the judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1096, 1099; People v. Panizzon (1996) 13 Cal.4th 68, 79.) As for the order revoking probation, substantial evidence supports the trial court’s finding Beltran failed to report to the probation department as ordered and violated the terms of his probation. (See People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)
Counsel originally filed an opening brief on April 12, 2007. On April 27, 2007, we granted counsel’s request to withdraw the opening brief with leave to file a new opening brief within 30 days because counsel had been mistakenly communicating with an inmate other than Juan Beltran with a similar name. After receiving a second extension, counsel filed Beltran’s opening brief on July 20, 2007.
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.