Opinion
G053764
01-19-2017
THE PEOPLE, Plaintiff and Respondent, v. MARSHALL FRANK CHIKOSI Defendant and Appellant.
Beatrice C. Tillman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14WF1429) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
We appointed counsel to represent Marshall Frank Chikosi on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. We gave Chikosi 30 days to file written argument on his own behalf. That time has passed, and Chikosi has not filed any written argument.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).) Chikosi did not raise any issues himself.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised one issue: Did Chikosi understand that if he was not granted probation and sentenced to a term of imprisonment, he was not eligible under the Criminal Justice Realignment Act (Act) to serve his sentence in county jail?
The Criminal Justice Realignment Act of 2011 provides that certain felony offenders serve their sentences in "local custody" rather than prison. (The Criminal Justice Realignment Act of 2011 (Stats.2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1); People v. Guillen (2013) 212 Cal.App.4th 992, 994.)
We have reviewed the record in accordance with our obligations under Wende and Anders, and considered the information counsel provided. We found no arguable issues on appeal. The judgment is affirmed.
FACTS
An information charged Chikosi with felony driving under the influence of alcohol with a prior DUI felony within 10 years (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a)) (count 1), and driving with a blood alcohol level higher than 0.08% (Veh. Code, § 23152, subd. (b) (count 2). The information alleged Chikosi suffered a prior felony conviction for driving under the influence in Orange County. Chikosi entered a guilty plea to counts one and two and admitted he previously suffered a conviction for driving under the influence, a felony, within 10 years. At the time it accepted the plea, the trial court indicated it would not sentence Chikosi to more than two years in prison.
At the sentencing hearing, the trial court indicated it had read and considered the probation and sentencing report. Prior to imposing sentence, the court indicated its recollection was that the question was whether these offenses were subject to the Realignment Act and that everyone had agreed they were not. The prosecutor and the defense attorney agreed with the court's recollection, and defense counsel indicated that was also Chikosi's understanding. Chikosi was present in court out of custody when counsel made the representation as to Chikosi's understanding. The court placed Chikosi on supervised probation for five years with various probation conditions, including that he serve 365 days in county jail.
Chikosi filed a timely notice of appeal. He requested a certificate of probable cause, but the trial court denied the request.
DISCUSSION
The fact counsel filed the opening brief under Wende confirms she does not believe the issue she identified is arguable. When specific issues are raised by the appellant himself in a Wende brief, we must expressly address those issues in our opinion. (Kelly, supra, 40 Cal.4th at pp. 110, 120, 124.) In this case, Chikosi did not file a supplemental brief and did not raise any specific issues. We have reviewed the record in accordance with our obligations under Wende and Anders and considered the issues listed by counsel. We find no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: ARONSON, J. FYBEL, J.