Opinion
2d Crim. No. B288616
01-24-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHELLE DIAN BIEL, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2015020684)
(Ventura County)
Michelle Dian Biel appeals the trial court's order revoking probation and ordering execution of a previously suspended six-year prison sentence. In July 2015, appellant pled guilty to furnishing heroin (Health & Saf. Code, § 11352, subd. (a)) and admitted an allegation that she personally inflicted great bodily injury (GBI) upon the person to whom she furnished the drug (Pen. Code, § 12022.7, subd. (a)). She was placed on five years probation with terms and conditions including that she serve 365 days in county jail.
After appellant admitted a probation violation, the court imposed a six-year prison sentence (three years for the substantive offense plus a three-year GBI enhancement), suspended its execution, and reinstated probation. Following appellant's admission of another violation of probation, she asked the court to strike the GBI enhancement on the ground of insufficient evidence pursuant to People v. Slough (2017) 11 Cal.App.5th 419 (Slough). The court denied the motion, terminated probation, and ordered execution of the previously imposed six-year sentence.
In Slough, we concluded the evidence was insufficient to support the jury's finding that the defendant had personally inflicted GBI upon the individual to whom he had sold heroin. We reasoned that "[Slough] handed off drugs to Zermeno in exchange for money. After that, they each went their separate ways. . . . [Slough] played no part in Zermeno's ingestion of the drugs. He neither performed nor participated in the act that directly inflicted the injury, so the GBI enhancement cannot apply. [Citation.]" (Slough, supra, 11 Cal.App.4th at p. 425.)
We appointed counsel to represent appellant in this appeal. After counsel's examination of the record, counsel filed an opening brief that raised no arguable issues. We subsequently advised appellant that she had 30 days within which to submit any contentions or issues that he wished to raise on appeal.
In a supplemental brief, appellant contends the evidence is insufficient to support her GBI enhancement and that her trial counsel provided ineffective assistance by "failing to explain the charges to [her] and recommend[ing] that [she] plead guilty and not go to trial." She also asserts that her conviction must be reversed because under "Business and Professionals [sic] Code [section] 2144, a person who in good faith seeks health care for someone who is experiencing a drug or alcohol overdose or other life threatening medical emergencies shall not be charged or prosecuted for a controlled substance offense."
None of appellant's contentions present an arguable issue for review. All three of her claims are impermissible collateral attacks on the final judgment of conviction. (People v. Barlow (1980) 103 Cal.App.3d 351, 360.) Moreover, the court had no authority to strike the GBI enhancement or otherwise reduce the sentence, which was previously imposed following a prior violation of probation. (People v. Howard (1997) 16 Cal.4th 1081, 1094-1095.) Appellant's "Good Samaritan" defense is also unavailing because the statute upon which she relies (Business and Professions Code former section 2144, now section 2395) does not apply to her.
The statute provides in relevant part that no licensed physician "who in good faith renders emergency care at the scene of an emergency, shall be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care." (Bus. & Prof. Code, § 2395.)
We have reviewed the entire record and are satisfied that appellant's attorney fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal. 4th 106, 126.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
Patricia M. Murphy, Judge
Superior Court County of Ventura
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.