Opinion
A169866
06-10-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE ALGER, III, Defendant and Appellant.
NOT TO BE PUBLISHED
(Lake County Super. Ct. No. CR960793)
STREETER, J.
Robert Lee Alger, III appeals from a judgment rendered upon a negotiated disposition of his case in Lake County Superior Court and termination of his probation sentencing him to a term of four years in county jail. Alger's appointed appellate counsel has submitted a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting we independently review the record. Counsel has advised Alger of his right to submit a supplemental brief, and Alger has not done so. Our independent review of the record has disclosed no issues that warrant further briefing.
I. BACKGROUND
In September 2021, the Lake County District Attorney filed an information charging Alger with four felonies, accompanied by certain special allegations, and three misdemeanors. Most of the charges were drug related.
The parties reached a negotiated disposition of the case. Alger agreed to enter a no contest plea to two of the counts, for transportation of heroin and for transportation of oxycodone (both Health & Saf. Code, § 11352, subd. (a)), for which the maximum sentence was six years and four months. The parties agreed that Alger would receive two years formal probation, 364 days in county jail, and day-for-day credit if he successfully completed a one-year drug treatment program. The court found that Alger had knowingly and voluntarily waived his rights, accepted his no contest pleas to the two charges, found a factual basis for the charges, found Alger guilty of their commission, and dismissed the remaining counts and special allegations.
The probation department subsequently reported that on an evening in February 2021, a Lake County Sheriff's Deputy pulled over a car driven by Alger, who displayed signs of being under the influence of a controlled substance. Alger admitted he had used heroin earlier that day. The deputy learned Alger's driver's license was suspended, arrested him, and searched him incident to arrest. He found .08 grams of heroin in Alger's pants pocket and 23.7 grams of heroin and 88 oxycodone pills underneath the front passenger seat. Alger admitted purchasing the heroin for $300 and said the oxycodone pills were included with that purchase.
At the sentencing hearing in August 2022, the trial court, in accordance with the parties' plea agreement, suspended imposition of sentence, placed Alger on two years formal probation, ordered him to serve 364 days in county jail, and ordered that he could serve the remaining portion of his jail sentence in a residential rehabilitation program and receive day-to-day credits if he successfully completed it. The court did not impose any fines or fees.
On October 27, 2022, the Lake County Probation Department filed a petition to revoke Alger's probation for his failure to comply with certain conditions of probation, to wit, his failure to submit monthly report forms to probation for September and October 2022, and his failure to surrender himself to serve his jail sentence or provide proof of being enrolled in an approved drug treatment program. At a subsequent hearing, Alger admitted violating his probation as alleged in the petition. The court found that Alger had knowingly and intelligently waived his rights, found a factual basis for, and accepted, his admission, and ruled he was in violation of his probation.
At the sentencing hearing in January 2024, the trial court ordered Alger's probation terminated and rendered judgment on the two counts for which it had found Alger guilty. It confirmed those convictions, sentenced him to the middle term of four years on the transportation of heroin count and a concurrent term of four years on the transportation of oxycodone count, and awarded him custody and conduct credits of 104 days. The court suspended the last six months of his sentence and ordered that he serve them in community supervision so that he might participate in a drug rehabilitation program, for which he would receive day-for-day credits if he successfully completed the program. The court found Alger did not have the financial ability to pay fines or fees and did not impose any.
Alger filed a timely notice of appeal from the trial court's January 2024 order and rendering of judgment.
II. DISCUSSION
In his notice of appeal, Alger, besides appealing from the sentence or other matters occurring after his plea that do not affect the validity of his plea, also challenges the validity of the plea itself. He did not obtain a certificate of probable cause from the trial court and, therefore, has waived any such challenges. (Pen. Code, § 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74-76.)
Regarding the court's termination of Alger's probation, "[i]n conducting a probation revocation hearing, a trial court exercises its discretion to 'revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of their supervision . . . .' (Pen. Code, § 1203.2, subd. (a).) The facts supporting a probation revocation must be proved by a preponderance of the evidence." (People v. Gray (2023) 15 Cal.5th 152, 163.) An appellate court reviews a probation revocation decision "pursuant to the substantial evidence standard of review [citation], and great deference is accorded the trial court's decision, bearing in mind that '[p]robation is not a matter of right but an act of clemency, the granting of revocation of which are entirely within the sound discretion of the trial court.'" (People v. Urke (2011) 197 Cal.App.4th 766, 773.) Alger admitted to his probation violations here. We see no reason for further briefing regarding any probation termination issues.
Regarding Alger's sentence and all other matters occurring after the plea that do not affect the validity of the plea, we have independently reviewed the record under Wende and conclude there are no issues that warrant further briefing.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: BROWN, P. J., GOLDMAN, J.