Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC151843A
Jenkins, J.
Defendant Blanca E. Yi appeals from a judgment after the revocation of probation and the imposition of a previously suspended sentence. Her appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and asks us to independently review the record and suggests one arguable issue. Yi has also submitted a supplemental letter asking us to consider the issue suggested by appellate counsel and six additional issues. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While she was on parole for a theft conviction, Yi committed another theft offense at a Sears Roebuck and Company store on January 31, 2007. In a complaint, Yi was charged with the felony offense of petty theft after serving a term in prison or jail for another theft (Pen. Code, § 666 ). The complaint alleged that Yi had six prior felony convictions: four prior convictions prohibited probation except in unusual cases (§ 1203, subd. (e)(4)), and one prior conviction for which she had served a prison term and failed to remain free of custody or of another felony conviction for five years following that term, which subjected her to a sentence enhancement of a consecutive term of one year (§ 667.5, subd. (b)). In a second count, Yi was alleged to have committed the misdemeanor offense of giving false information to a peace officer (§ 148.9, subd. (a)).
All further unspecified statutory references are to the Penal Code.
At a change of plea proceeding on June 6, 2007, Yi, represented by counsel, pleaded guilty to both offenses and admitted the alleged prior convictions, including the one that resulted in a prior prison term sentence enhancement, with a “no prison promise.” Defense counsel stipulated that there was a factual basis for the pleas and admissions, and the trial prosecutor noted the court had been given a probable cause statement. Yi acknowledged that her counsel had advised her of the evidence against her, the possible defenses to the charges, and the advantages and disadvantages of pleading guilty. The court informed Yi of the potential minimum and maximum sentences for the charged offenses, but no reference was made to the consecutive one year sentence to be imposed on the prior prison term enhancement. The court agreed to sentence Yi to probation with the understanding that if she subsequently violated the terms and conditions of probation she could be sent to state prison.
Before sentencing, the probation department recommended that the court impose the aggravated term of three years on the theft offense plus a consecutive term of one year for the prior prison term enhancement, but suspend execution of the sentence and place Yi on probation to give her one opportunity to prove she could change her behavior. The probation officer noted that 30-year old Yi had an extensive record of numerous theft-related convictions, and that she was on parole when she committed the current theft offense. Her state parole officer had successfully recommended that Yi not serve any further time in prison for violating parole. Yi had participated in therapy with different therapists, and had been involved in a shoplifter’s recovery program but she was unable to complete it before she was sent to state prison. Since February 27, 2007, Yi had been attending weekly therapy sessions. According to the therapist, Yi had come to terms with her stealing addiction and had learned concrete ways to confront her habit. Yi had not stolen anything since her last arrest, and she seemed highly motivated to end her unhealthy habit. Yi had found housing, bought a car, and was working at two full time jobs. She was in regular contact with her three children who lived with their father out of state.
On July 25, 2007, the court agreed with the probation officer’s recommendation. Yi was sentenced on the theft offense to an aggregate term of four years, consisting of the aggravated term of three years on the substantive offense and a consecutive term of one year for the prior prison term enhancement. In choosing the aggravated term, the court found the aggravated term was warranted becauseYi had numerous prior convictions, she had served prior prison terms, and she was on parole when she committed the current offense that appeared to have been planned. And, the aggravating factors were outweighed by the mitigating factor of Yi’s diagnosis as a kleptomaniac with other psychological problems due to a traumatic childhood. The court also determined that there was no reason not to impose the prior prison term enhancement, to which defense counsel raised no objection. Execution of the sentence was suspended and Yi was placed on supervised probation for five years. As to count two, the court imposed 44 days in county jail and Yi was granted permission to apply for the adult offender work program. The court again admonished Yi that if she violated any of the terms of her probation, the court would have no other recourse but to send her to prison for four years. Yi did not appeal the July 25, 2007 order granting probation.
About five months later, the Marin County District Attorney filed a petition to revoke Yi’s probation, alleging she had committed a new felony theft offense at a Whole Foods store on January 11, 2008. At a probation revocation hearing, the security officer of the food store testified regarding his observations of Yi’s theft of $99 worth of items, which she had secreted in her purse before leaving the store. Police Officer Kyle Hornstein testified concerning his arrest of Yi. The court revoked Yi’s probation after finding that she had violated probation by committing a new theft offense.
In a probation violation report, dated January 30, 2008, the probation officer recommended that Yi’s probation be reinstated on condition that Yi serve an additional six months in county jail, that she complete a shoplifters’ recovery program, and that she take medication as directed by a therapist. Yi’s therapist reported to the probation officer that Yi might be suffering from post traumatic stress disorder, a more serious condition than kleptomania. Yi was arrested for the new theft offense before she could be correctly diagnosed and receive appropriate treatment.
At the request of the probation officer, a licensed psychologist evaluated Yi after he reviewed background documents from the probation department and information from Yi’s therapist. Disagreeing in part with the diagnosis of Yi’s therapist and an earlier evaluation of Yi that she was a kleptomaniac, the psychologist opined that the most obvious diagnosis is that Yi is suffering from an underlying mixed personality disorder including antisocial, borderline and passive-aggressive features. He did not challenge the idea that Yi suffered from post traumatic stress disorder, but there was reason to be cautious in accepting Yi’s statements at face value, and during the evaluation interview Yi did not exhibit the kind of anxiety, apprehensiveness. or suspiciousness that was characteristic of post traumatic stress disorder victims. The psychologist also doubted the diagnosis of kleptomania, because Yi’s statements during the interview were far more consistent with a personality disorder than an anxiety-reducing disorder such as kleptomania. The psychologist opined that providing more treatment for Yi would not likely eliminate future recidivism. Her personality disorder was “simply notoriously difficult” to treat, albeit some research suggested that for highly motivated persons, change could occur over a number of years. Although Yi almost certainly was less likely to reoffend with each passing year, she remained at significant risk to reoffend for the next 5 to 10 years.
At sentencing on March 17, 2008, the court indicated it had read the probation department report as well as a letter from Yi’s therapist and the report from the licensed psychologist. The court also heard arguments from a probation department officer and counsel for both parties. The court rejected Yi’s request for another opportunity at community-based treatment in light of her criminal history and the court’s previous admonitions that if she reoffended she would go to prison. The court recognized that sending Yi to state prison was not a long-term solution but Yi had not shown she was motivated to change her behavior. The court imposed the previously suspended sentence of four years in state prison. Yi filed a timely notice of appeal from the March 17, 2008 judgment. (§ 1237, subd. (b).)
DISCUSSION
We have reviewed the entire record and the contentions of Yi and her appellate counsel and conclude there are no issues warranting further briefing.
By failing to appeal from the July 25, 2007 order granting probation, Yi has forfeited review of her assertions challenging the factual bases for the pleas, the court’s failure to inform her of the potential term that could be imposed upon her admission to a prior prison term enhancement, and the reasons for imposing the aggravated term of three years for the theft conviction. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421, 1424-1425, 1427 fn. 5.) People v. Walker (1991) 54 Cal.3d 1013, cited by appellate counsel, does not support a collateral attack on the pleas. (Cf. People v. Thomas (1959) 52 Cal.2d 521, 528-529 [judgment of conviction that is void for jurisdictional defect may be collaterally attacked at any time].) Also, Yi’s allegations challenging her trial counsel’s conduct and assistance are not supported by the record, and therefore, cannot be reviewed on this appeal. (People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12.)
Yi’s assertions regarding the March 17, 2008 judgment do not raise any arguable issues. Substantial evidence, which was presented at the probation revocation hearing, supports the court’s finding that Yi violated probation by committing a new theft offense. The court acted within its discretion in refusing to reinstate Yi to probation based upon her significant criminal history and her failure to show that she was motivated to change her behavior. The court was free to accept the report of the licensed psychologist, who was known to the court for years as having an excellent reputation, and whose opinions were supported by Yi’s criminal history. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.) The record does not show that the court arbitrarily rejected the opposing opinions of the probation officer and Yi’s therapist. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) We see no error in the trial court’s order lifting the suspension of the previously imposed sentence of four years after revoking Yi’s probationary term. (§ 1203.2, subd. (c); People v. Howard (1997) 16 Cal.4th 1081, 1088.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.