Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 203594
RUVOLO, P. J.
Appellant Christina Holmes (appellant) appeals from a four-year state prison sentence she received (subject to local custody credits) after she pled guilty to a single count of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and after she violated her agreement to appear at sentencing, to visit her probation officer, and to provide a DNA sample. Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record, as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead is being requested. Appellant was also advised of her right personally to file a supplemental brief raising any issues she chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.
Appellant was originally charged in an information filed by the San Francisco District Attorney’s Office on December 31, 2007, with one count of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The information alleged that appellant had a separate prior felony conviction for sale of a controlled substance, within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c), and a prior conviction for possession for sale and sale of a controlled substance, within the meaning of Health and Safety Code section 11370.2 and Penal Code section 1203.07, subdivision (a)(11). The information also alleged numerous charges against appellant’s codefendant, Wayne Willie Smith.
Prior to trial, appellant filed a motion to sever the trial of the charges against her from those of her codefendant. The motion was subsequently denied and the case was set for trial on June 20, 2008. Appellant withdrew her time waiver on May 15. Ultimately, trial was continued from June 20 to July 14. Codefendant Smith also made a pretrial motion to sever his case from appellant’s case, which was denied. Appellant’s pretrial motion to strike the Health and Safety Code section 11370, subdivisions (a) and (c) and Penal Code section 1203.07, subdivision (a)(11) allegations was granted, while the remaining allegation under Health and Safety Code section 11370.2 was ordered bifurcated.
All further dates are in the calendar year 2008, unless otherwise indicated.
Trial commenced on July 14, and on July 24, a hung jury was declared as to appellant. Apparently, the jury was hung 11 to 1 for guilt. Codefendant Smith was convicted as to all counts pleaded against him, while all pleaded allegations were found true. The matter as to appellant was continued to July 25 for disposition and reset. On July 25, a plea disposition was accepted by appellant. In return for her open plea of guilty to count three, appellant would be sentenced to time served (one year in county jail), with conditions as stated on the record.
In connection with the disposition, the court offered appellant two options. She could be released that day (July 25) on her own recognizance. However, if appellant failed to visit her probation officer, provide a DNA sample, reoffended, or failed to come back to court, “then instead of this is three [sic] one-year county jail, you will serve four years’ state prison.” Alternatively, appellant could stay in jail over the weekend while the probation department interviewed her and decided on an appropriate program. In that case, the court “would not put a four-year state prison hammer on you.” However, all of the conditions offered in alternative one would also be imposed, and if appellant violated any of them, the disposition would be “off the table,” and she would have to go to trial. Appellant accepted the first option, and told the court that she understood if she “blew” it, she would be “doing four years’ state prison.”
Subsequently, appellant failed to appear for sentencing on August 22. Her O.R. (own recognizance) release was revoked and a bench warrant issued. The bench warrant was returned on September 22, and appellant was placed in custody pending sentencing. A Marsden motion was made by appellant on October 31, and the court appointed independent counsel to look into the ineffective assistance of counsel issue.
People v. Marsden (1970) 2 Cal.3d 118.
Sentencing and a decision on appellant’s motion to withdraw her guilty plea ultimately took place on December 19. The court first considered the report of independent counsel and concluded there was no basis for an ineffective assistance of counsel claim. Accordingly, the motion to withdraw her guilty plea was denied. Thereafter, the court imposed a four-year state prison sentence, with credit for time served. The reasons stated for the sentence were that appellant had failed to meet with her probation officer, provide a DNA sample, and failed to appear in court as agreed.
Upon our independent review of the record, we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. We discern no error in the sentencing. The refusal to grant probation, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.