Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. No. MF48587. Ronald W. Hansen, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Hill, J. and Kane, J.
INTRODUCTION
Appellant Rolland Marion Christian pleaded no contest to two counts of possession of narcotics for sale pursuant to a negotiated disposition and he was placed on probation. He violated probation when he was found in possession of stolen property and the court sentenced appellant to nine years eight months in prison pursuant to the terms of the negotiated disposition. On appeal, appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Given appellant’s no contest plea, the facts of the underlying offense are taken from the police reports.
On April 30, 2008, deputies from the Merced County Sheriff’s Department executed a search warrant and found appellant in possession of methamphetamine, marijuana, baggies, a scale and a pay/owe sales ledger. Appellant admitted the methamphetamine belonged to him, and he sold methamphetamine to supplement his income and support his own habit.
Appellant was charged with count 1, possession of methamphetamine for sale (Health & Saf. Code, § 11378), with two enhancements for having suffered prior narcotics convictions (§ 11370.2, subd. (c)), and count 2, possession of marijuana for sale (§ 11359).
All statutory citations are to the Health and Safety Code unless otherwise indicated.
On June 25, 2008, appellant entered into a negotiated disposition and pleaded no contest to the two felony counts and admitted the two enhancements as charged in the complaint, with an indicated sentence of nine years eight months. The court suspended imposition of sentence and placed appellant on probation for five years, subject to various terms and conditions, including to obey all laws.
Appellant executed a plea form that stated he intended to enter pleas to count 1, violation of section 11378, and count 2, violation of section 11359, and that he pleaded no contest to violations of sections “11379” and “11378.” At the plea hearing, however, appellant pleaded guilty to count 1, violation of section 11378, and count 2, violation of section 11359.
Probation Violation Hearing
On August 20, 2008, a petition was filed that alleged appellant violated probation by failing to obey all laws, based upon his violation of Penal Code section 496, subdivision (a), receiving stolen property. Appellant was also charged by information in a separate case with felony receiving stolen property, based on the same incident. On October 9, 2008, the court conducted both an evidentiary hearing on the probation violation and the preliminary hearing in the separate felony case.
The hearing evidence revealed that in December 2006, the Roto Rooter business in Merced was burglarized and a unique “C-Snake” camera was stolen. The camera was used to assess the condition of sewer lines. The infrared device used a series of fiber optic cables to feed images to a monitor. It could not be used underwater but only after water was drained from the lines. The camera weighed 50 pounds and it was worth about $4,000.
The hearing evidence further revealed that on July 23, 2008, appellant contacted a service technician with the Roto Rooter business in Merced and offered to sell him a “C-Snake” camera in exchange for septic pump service. The technician contacted Alvi Winchester, another Roto Rooter employee, and asked what to do. Winchester arrived at appellant’s location and immediately recognized the camera as the unique device stolen in the burglary of his employer’s business. Appellant initially said his father owned the camera and gave it to him, and appellant used it to find fish in the water. Winchester knew that was not true because the camera did not function underwater. As the conversation continued, appellant changed his story and said he bought the camera from someone for $1,700. Appellant offered to sell the camera for $400. Winchester agreed to the price and to pump out the septic tank as part of the deal. Winchester paid appellant, recovered the camera and reported the incident to the police.
Detective Buck Ledford interviewed appellant about the incident, and appellant claimed he purchased the camera for $1,200 from a vendor at the Atwater Flea Market over a year earlier. Appellant further stated the Roto Rooter technician approached him and said his boss might be interested in the camera.
Appellant testified at the evidentiary hearing that in February 2007, he purchased the camera for $1,200 from a vendor at the Atwater Flea Market. Appellant used the camera to locate fish under water, and he was trying to sell the camera because he wanted to buy another one with a better lens. He thought the Roto Rooter technician would be interested in the camera. He did not know the camera was stolen. Appellant denied telling Winchester that he received the camera from his father or that he bought it for $1,700. Appellant told Winchester the flea market vendor said the camera was worth $1,700.
At the conclusion of the hearing, the court found appellant’s testimony was not credible, the allegations of the probation violation were true by a preponderance of the evidence and it revoked probation. The court also found sufficient evidence to hold appellant to answer on the information for felony receiving stolen property.
Marsden Hearing and Sentencing
On November 6, 2008, the court conducted a hearing on appellant’s motion to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. Appellant said his attorney failed to explain that the probation violation hearing also constituted the preliminary hearing on the new felony information. Appellant further stated he would have called other witnesses to testify, including the Roto Rooter technician. Appellant conceded he never told his attorney about other witnesses. Defense counsel stated he repeatedly explained the proceedings to appellant, that witnesses would be called at the probation violation hearing and that appellant faced a prison sentence if the court found he violated probation. Counsel stated appellant never asked to call the Roto Rooter technician, but counsel believed that witness would not have helped the defense and the entire case depended on appellant’s credibility.
The court denied the Marsden motion. Thereafter, the court granted the prosecution’s motion to dismiss the newly filed felony case, denied probation and imposed sentence pursuant to the terms of the previous plea agreement: the upper term of three years as to count 1, possession of methamphetamine for sale, with two consecutive three-year terms for the enhancements, and a consecutive term of eight months (one-third the midterm) for count 2, possession of marijuana for sale, for an aggregate term of nine years eight months. The court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and another $200 fine pursuant to Penal Code section 1202.45, which was stayed pending successful completion of parole. The court awarded 117 days of actual credits and 58 days of conduct credits, for a total of 175 days.
DISCUSSION
Appellant’s appointed counsel has filed an opening brief that adequately summarizes the facts and adequately cites to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) By letter dated May 5, 2009, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.
Our independent review discloses no reasonably arguable appellate issues. “[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
DISPOSITION
The judgment is affirmed.