Opinion
G053451
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. PETER JUDE BRIONES, Defendant and Appellant.
Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF0886) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2015, appellant Peter Jude Briones pled guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and several other lesser violations of the law. He also admitted he had suffered five prison priors (Pen. Code, § 667.5, subd. (b)). Nonetheless, imposition of sentence was suspended and he was placed on probation for three years, after serving 290 days in the county jail. One of the conditions of his probation was the standard requirement that he violate no law.
In January of 2016, appellant was charged with again possessing methamphetamine for sale, and a concurrent probation violation was charged for the same offense, the theory being that he had violated the law by again possessing methamphetamine for sale and had also committed two lesser drug-related violations. He was convicted of simple possession of methamphetamine at the trial, and the court found that to be a violation of his probation. Probation was revoked and he was sentenced to the upper term of three years for simple possession. (The court struck the five prison priors for sentencing.)
Briones appealed, and we appointed counsel to represent him. Counsel filed a brief which set forth the facts of the case and the only point counsel could imagine would support an appellate issue: whether the court had overreached in sentencing Briones to the upper term. Counsel did not argue against his client, but advised this court he could find no issues to argue on appellant's behalf. (People v. Wende (1979) 25 Cal.3d 436.)
Briones was given 30 days to file written argument in his own behalf. That time passed and no brief was filed. We have considered the sentencing point raised by counsel, and have scoured the record, including the very short transcript of the probation violation hearing, and we are unable to find any arguable appellate issue.
Briones appealed only the probation violation, not the result of his trial. --------
It was Briones' wish not to be placed on probation again. As his counsel phrased it, he wanted to do his time and get a fresh start, rather than having what is generally referred to as a "probation tail," so the only issue was how much time in state prison this six-time offender would get. His attorney argued for low term, which, with his custody credits, would have put him back on the street in four months.
But the judge - while sympathetic - was not willing to let a man with five prison priors off that easy. He struck the prison priors, but sentenced him to the upper term of three years. We regard this as an exercise of leniency rather than harshness, and well within the trial court's discretion. We can certainly understand why appellate counsel did not think that an arguable appellate issue.
We find ourselves in agreement with appellate counsel that there are no appellate issues with a reasonable prospect of success with respect to Briones' guilt or the judgment imposed upon him. His violation of probation was established by the conviction from which he has not appealed, and the sentence was an appropriate exercise of discretion. The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.