Opinion
D058349 Super. Ct. No. SCD221016 & SCD221017
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. SUSAN G. CARTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Laura Halgren, Judge. Affirmed.
In 2009 Susan G. Carter entered a negotiated guilty plea to unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (case No. SCD221016) and grand theft (Pen. Code, § 487, subd. (a)) (case No. SCD221017). In each case the court imposed a stipulated three-year upper term prison sentence, suspended execution of sentence and placed her on five years' probation. In 2010 Carter admitted violating probation in both cases. The court revoked probation and executed the prison sentences, to be served concurrently. Carter appeals. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
In case No. SCD221016, Carter unlawfully drove a vehicle belonging to a car dealership, with the intent to deprive the dealership of title or possession, permanently or temporarily.
In case No. SCD221017, Carter took $15,000 from one victim, and $1,500 from another, as purported investments in real property that Carter did not own.
Carter violated probation by failing to make payments toward fines and restitution, report to the probation officer, report a change of address, seek fulltime employment or schooling and enroll in psychological counseling.
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. 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 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel lists, as possible but not arguable issues, (1) whether the trial court should have reinstated probation rather than revoking it and executing the prison sentence; and (2) whether complaint filed on June 4, 2009, in case No. SCD221017 was facially insufficient as a matter of law because it was not filed within the three-year statute of limitations.
THE SUPPLEMENTAL BRIEF
We granted Carter permission to file a brief on her own behalf. She has filed a supplemental brief. She contends appointed appellate counsel filed a Wende brief without her permission and after obtaining four extensions of time, the last two of which were based on counsel's intention to file a motion for one additional day of credit. She contends appointed appellate counsel was ineffective and there are arguable issues, discussed below.
First, Carter contends she did not violate probation and the court erred by revoking probation. Because the court denied Carter's request for a certificate of probable cause, she cannot now challenge the probation revocation. (§ 1237.5; In re Chavez (2003) 30 Cal.4th 643, 650.) Furthermore, Carter was advised of her constitutional rights and waived her right to an evidentiary hearing before admitting she had violated probation. (People v. Clark (1996) 51 Cal.App.4th 575, 581-582, criticized on another point by People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098, fn. 7.)
Second, Carter contends the court abused its discretion by sentencing her to the three-year upper term. As part of the plea bargain, Carter stipulated to the three-year prison term and waived her right to appeal the stipulated sentence. Moreover, the court imposed and suspended execution of the three-year upper term prison sentences in 2009, when it placed Carter on probation, and lacked the power to reduce the sentence when it revoked probation in 2010. (People v. Howard (1997) 16 Cal.4th 1081.)
Third, Carter contends the court erred by denying her motion for reconsideration of the sentence. Shortly after sentencing, Carter wrote a letter to the court claiming she had committed no crimes and her guilty plea was coerced. In the letter, Carter asked the court to reconsider its decision, withdraw its ruling and dismiss the case. The court declined to take any action because the letter constituted an ex parte communication, but noted that Carter could file an appropriate noticed motion or appeal, and was entitled to appointed counsel if she could not afford to retain counsel. No motion was filed. The lack of a certificate of probable cause precludes Carter from challenging the validity of her guilty plea (§ 1237.5), and the guilty plea precludes her from claiming she committed no crimes (People v. Thurman (2007) 157 Cal.App.4th 36, 43).
Fourth, Carter contends she was entitled to 250 additional days' custody and conduct credit for her incarceration in San Diego in 2004 and 2005 in cases No. SCD134893 and SCD185084, and in Orange County from September 16, 2009, through September 25, 2009. Carter was confined in the instant cases beginning on June 2, 2009, and is not entitled to credit for periods predating that confinement. The record does not show that she spent time in custody attributable to the instant cases during any periods other than June 2, 2009, through September 15, 2009, and August 4, 2010, through September 3, 2010. The court awarded Carter credit for those periods, that is, 137 actual days' credit and 136 days' former section 4019 credit, for a total of 273 days. Appointed appellate counsel filed a motion for one additional day of credit based on the amendment to section 2933, subdivision (e), effective September 28, 2010, which entitled Carter to one additional day of conduct credit because she was in custody for an odd number of days. The court granted the motion, bringing Carter's credits to a total of 274 days. Carter is not entitled to any additional credit.
Finally, Carter contends trial counsel was ineffective. Carter claims counsel led her to believe she could admit a single technical probation violation, failure to attend an appointment with the probation officer, and be sentenced based on that violation, but due to counsel's ineffectiveness, her sentence was based on all five charged violations. Carter also claims that due to ineffective assistance of counsel, the court based the sentence on Carter's conduct while on probation, rather than on the circumstances that existed at the time of the probation grant. Carter has not shown that trial counsel failed to act in a manner expected of a reasonably competent attorney or that Carter was prejudiced by anything that counsel did or failed to do. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.)
CONCLUSION
A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Carter has been competently represented by counsel on this appeal. Carter's request for new appointed appellate counsel is denied.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.