Opinion
No. D041818.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBBIN APPLESTEIN, Defendant and Appellant.
Robbin Applestein entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted a strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Pursuant to Proposition 36 (& sect; 1210.1), on July 12, 2002, the court placed her on three years probation. On August 7, it revoked probation after Applestein failed a drug test. The court reinstated probation on August 14. On September 25, it revoked probation after Applesteins second drug-related probation violation. The court again reinstated probation on October 30. On December 5, Applestein tested positive for cocaine and left the court without making an appearance at a scheduled hearing. On December 19, the court revoked probation after Applestein submitted a letter to the court in which she admitted having tested positive on December 5 and leaving court because she was scared. The court refused to dismiss the strike and sentenced her to prison for 32 months: double the 16-month lower term for possessing a controlled substance with a strike prior.
All further statutory references are to the Penal Code.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 was approved by voters on November 7, 2000, and took effect on July 1, 2001.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Applestein can raise a claim not identified in the notice of appeal without a certificate of probable cause (Cal. Rules of Court, rule 30(d)); (2) whether the trial court should have reinstated Proposition 36 probation; (3) whether the trial court should have placed Applestein on non-Proposition 36 probation; (4) whether the trial court understood its discretion to dismiss the strike prior; (5) whether the trial court should have allowed Applestein to speak a second time at the probation revocation hearing; and (6) whether Applesteins trial counsel provided ineffective assistance regarding her desire to tell the court the People were not carrying out their part of the plea bargain and in failing to obtain or assist her in obtaining a certificate of probable cause.
Because Applestein entered a guilty plea, she cannot challenge the facts underlying the conviction. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.
We granted Applestein permission to file a brief on her own behalf. She has responded claiming the People did not carry out their side of the plea agreement to provide her with treatment for her drug problem, the court did not ask her if she had used drugs within 24 hours of entering her guilty plea, she was not allowed to speak to the court before sentence was imposed, only one of the probation violations was drug related, the court did not know what it was doing when she entered her plea bargain, she should not be held accountable for her attorneys incompetence, a statement by the court that she was not seeking help was false, and the prosecution erroneously told the court she tested positive twice.
Absent a certificate of probable cause, a defendant cannot challenge on appeal the validity of a guilty plea or admission of a probation violation. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Whether the court asked Applestein if she had used drugs within 24 hours of entering her guilty plea, and whether the court knew what it was doing when she entered the guilty plea go to the validity of the guilty plea and cannot be raised on appeal absent a certificate of probable cause.
The record does not provide information regarding whether the People carried out their side of the plea agreement to provide Applestein with treatment for her drug problem or on Applesteins claim that her trial counsel was not competent when she requested to tell the court that the prosecution was not complying with its side of the plea agreement. We note that section 1210.1, subdivision (c) provides that within seven days of the probation order, the probation department shall notify the designated drug treatment provider and within 30 days of receiving the notice, the provider shall prepare a treatment plan. The record does not reflect whether or not this provision was complied with. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Applestein wishes to pursue the claim that drug treatment was not made available to her as required by section 1210.1, subdivision (c), or that her counsel was ineffective, she must do so by a petition for writ of habeas corpus filed in the trial court.
Regarding Applesteins claim that she was not allowed to speak with the court before the court imposed sentence, when a defendant is represented by counsel, whether to allow the defendant to personally make a statement to the court at the time of sentencing is within the trial courts discretion. (People v. Cross (1963) 213 Cal.App.2d 678, 682-683.) The court abuses its discretion only when it acts arbitrarily or in a capricious manner. (People v. Jordan (1986) 42 Cal.3d 308, 316.) Applestein did not request to speak at the sentencing hearing. Failure to have a defendant speak at the sentencing hearing when the defendant does not ask to speak is not an abuse of discretion.
Applestein claims that only one probation violation was drug related. However, section 1210.1, subdivision (e) authorizes a defendant who falls within Proposition 36 to be placed in custody after the third probation violation regardless of whether the violation is drug related or not. (§ 1210.1, subd. (e)(2), (3)(C).)
With respect to Applesteins claim that the trial court falsely stated she was not seeking help for her drug problem, while discussing whether to dismiss the strike prior to make Applestein eligible for California Rehabilitation Center, the court said, "if the person wants treatment, they can try to get it. If they dont, they wont. And she didnt." Applestein also claims that the prosecution misstated the number of times she tested positive for drug use. Applestein did not object to the statements in the trial court. She cannot object for the first time on appeal. (See People v. Green (l980) 27 Cal.3d 1, 29, 34, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3); People v. Scott (1994) 9 Cal.4th 331, 356.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues raised by Applestein in her supplemental brief, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Applestein on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.