Opinion
A153889
10-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID K. BORUP, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR1684994)
On February 22, 2018, appellant David Borup was sentenced to an aggregate prison term of three years and eight months, consisting of three years for possession of heroin for sale (Health & Saf. Code, § 11351) and eight months for failure to appear. (Pen. Code, § 1320, subd. (b).) We need not relate the facts pertaining to the initial charges as the appeal is limited to the sentence imposed and other matters occurring after appellant entered his original plea and was convicted and sentenced on the basis of that plea.
Appellant's court-appointed counsel has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was advised by counsel that a Wende brief would be filed in this case and that appellant could personally file a supplemental brief in this case within 30 days raising any issues that he wishes to call to the court's attention. However, appellant filed no such brief.
PROCEEDINGS BELOW
On May 8, 2015, after he pleaded guilty to possession of marijuana for sale, appellant failed to appear for sentencing. Almost a year later, on March 7, 2016, the Mendocino County District Attorney charged appellant with failure to appear as a felony. Eleven days later, appellant entered an open plea to that offense and admitted a special allegation that he had been released on his own recognizance at the time of the failure to appear. On April 16, 2016, appellant was sentenced to 210 days in county jail and 60 months of formal probation.
On December 22, 2016, the probation officer filed a first amended petition alleging violation of probation in that appellant failed to appear for a scheduled probation appointment and a mandatory court date and had been arrested the previous day on a bench warrant.
On January 25, 2017 (all subsequent dates are in that year unless otherwise indicated), the court granted appellant's petition that his possession of marijuana be reduced from a felony to a misdemeanor pursuant to Proposition 64. Appellant thereafter admitted the probation violation and was ordered to serve 270 days in county jail, the 210 days previously ordered, plus an additional 60 days for the probation violation.
On May 12, the probation officer filed a second petition alleging another violation of probation after appellant had tested positive for methamphetamine and failed to comply with other probation requirements, including enrolling in a residential treatment program and failing to provide a buccal swab. After appellant admitted the probation violations, he was sentenced on July 7 to 90 days in county jail, after which he was required to participate in a residential treatment program for six months.
On August 17, while on probation, appellant was charged with transportation of a controlled substance for purpose of sale and possession of such a substance for purposes of sale. The probation officer also successfully petitioned the court to revoke appellant's probation.
On August 29, appellant entered a plea of guilty to possession of heroin for sale (Health & Saf. Code, § 11351), the other charges were dismissed, and appellant was ordered to attend drug court for 12 months. After the drug court refused to accept appellant for a 12-month term, requiring instead an 18-month term, the sentencing court accommodated the requirement by extending appellant's probation for 18 months.
On September 29, appellant was released from custody by the drug court despite its concern that appellant had not yet been placed in a residential treatment program. The court ordered appellant to report to the probation department at 8:00 a.m. daily for testing and to attend at least one Alcoholics Anonymous (AA) meeting until placed in a residential treatment program.
On October 21, appellant was arrested by the Mendocino County Sheriff's Department for the misdemeanor offense of resisting or obstructing a law enforcement officer. (Pen. Code, § 148, subd. (a)(1).) Earlier that month appellant had violated probation by failing to appear for court-ordered probation appointments and a scheduled hearing in drug court.
On November 3, appellant's participation in drug court was terminated.
On December 19, appellant admitted testing positive for opiates, failing to appear at probation appointments and in court, and being terminated from participation in the drug court program. Due to his termination from drug court, the deferred entry of judgment for possession of heroin was revoked. Appellant also pleaded guilty to providing false information to a police officer. (Pen. Code, § 148.9)
On February 22, 2018, the trial court sentenced appellant to three years in prison for the possession of heroin and an additional eight months for the most recent probation violation.
Appellant filed a timely notice of appeal on March 13, 2018.
DISCUSSION
The scope of reviewable issues on appeal after a plea of guilty or no contest is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Appellant's pleas were entered in a manner compliant with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
There were factual bases for his pleas. Appellant was at all times represented by competent counsel who zealously protected his rights and interests. The sentence imposed is authorized by law.
Our independent review having found no arguable legal issues that require further briefing, the judgment, including the sentence, is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.