Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. TA079247
THE COURT:Mark Anthony Moore, also known as Reggie Moore, Kay Moore and Joe Moore, without obtaining a certificate of probable cause, appeals from the order revoking probation previously granted after his plea of no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and admission that he had suffered a prior felony strike within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
At the plea hearing, the prosecutor told appellant that he was going to “plead open . . . [t]hat is that you’re going to have a probation and sentencing at a future date” and that he was subject to a maximum sentence of six years. The prosecutor continued that it was “anticipated that you will have been accepted into a one-year residential drug treatment program. That there will be 30 months -- 32 months of state prison suspended in this case pending your successful completion of that live-in program.” In taking the plea, the prosecutor did not inquire whether there were any promises or inducements made in order for appellant to enter the plea. The trial court sentenced him to the lower term of 16 months, doubled to 32 months. It suspended execution of sentence and placed appellant on three years formal probation on the condition that he spend a year in the Los Angeles Transition Center live-in drug treatment facility.
At a subsequent probation violation hearing, defense counsel moved to set aside the plea, arguing that it was illegal because appellant could not properly have been placed on probation in a two-strike case. Penal Code section 667, subdivision (c)(2) specifies that when the defendant is sentenced for a second or third strike, “‘[p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.’” (See People v. Rosbury (1997) 15 Cal.4th 206, 210.)
The trial judge at the probation violation hearing, who was not the judge who had sentenced appellant, concluded that the sentence was void or voidable. Consequently, appellant was not on probation and a probation violation hearing would be moot. He declined to take jurisdiction of the matter and ordered it returned to the sentencing judge. That judge denied the motion to set aside the plea without discussion on the record.
Thereafter, the trial court found that appellant violated the terms of his probation based on his admission to having smoked crack cocaine during the probationary period and the testimony of his probation officer that appellant was arrested for drug possession and thereafter for taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)) during the probationary period, had made no court-ordered payments, failed to report to probation and failed to complete the one year drug treatment program, having entered it on November 29, 2005 and terminated from it on March 24, 2006. The trial court imposed the previously suspended 32-month sentence.
We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On April 30, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.