Opinion
B164942.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. RAMON CLEMENTE, Defendant and Appellant.
Jonathan B. Steiner, Executive Director, and Richard L. Fitzer, under appointments by the Court of Appeal, for Defendant and Appellant. No appearance, for Plaintiff and Respondent.
Appellant Ramon Clemente appeals from judgment finding him unsuitable for placement in the California Rehabilitation Center and sentencing him to prison for a term of five years.
After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441, 158 Cal. Rptr. 839, 600 P.2d 1071.
On May 22, 2003, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On May 28, 2003, he filed a supplemental brief. On June 18, 2003, he requested a continuance of 31 days to "reconsider a supplemental opening brief." We denied that request.
In his supplemental brief, appellant contends he was not timely arraigned in November 2001, was deprived of due process when the court overruled his demurrer and denied his motion to dismiss, was denied effective assistance of counsel at his violation of probation hearing in February 2002, was wrongly sentenced to prison for the upper term, and was denied the benefits of Proposition 36.
Our review of the record reveals that on July 17, 2001, appellant was held to answer to the charge that he sold, transported, or offered to sell cocaine base in violation of Health and Safety Code section 11352, subdivision (a). Appellant exercised his right of self-representation throughout proceedings that resolved on September 21, 2001, with his plea of nolo contendere to violation of Health and Safety Code section 11352, subdivision (a) in return for a grant of probation. The following January, appellant was returned to court on a new case and a possible violation of probation in this matter. On January 17, 2002, counsel was appointed to represent appellant. Both cases were set for hearing on February 7, 2002. The probation violation was heard first. Counsel appointed to represent appellant did not indicate, in any manner, that he had not had sufficient time to prepare for the hearing. The evidence proved that on October 19, 2001, appellant possessed marijuana, a crack pipe and cocaine. He also stole some CDs from Aarons Records on the same date. Defense counsels motion to dismiss on the ground that appellants right to due process was violated by the destruction of a surveillance tape was denied. The court sentenced appellant to prison on this matter with a recommendation that he spend some or all of his time at a facility that would afford him drug treatment. On the Peoples motion, the new case was dismissed in the interests of justice.
On May 1, 2002, the trial court heard appellants motion to recall his sentence and to commit him to the California Rehabilitation Center rather than prison. The court advised appellant that he could be found unsuitable for commitment to that facility due to his history of narcotic trafficking. The court also warned appellant he could not earn conduct credits in that facility and could subsequently be excluded even if initially accepted. Through counsel appellant indicated his understanding of these risks and his desire for a commitment order. The court made the order.
On January 30, 2003, appellant was returned to court for sentencing after the California Rehabilitation Center excluded him on the ground that his conduct created a threat to the safety and security of the center. Defense counsel argued the exclusion was an abuse of discretion based upon an overstatement of an incident in which appellant either handed a container of milk to or threw the container at a correctional officer. The trial court rejected this argument and sentenced appellant to prison.
Our review of the record satisfies us that no arguable issues exist. Appellant was not eligible for the benefits of Proposition 36, the court did not abuse its discretion in imposing an upper term, appellant was not deprived of effective assistance of counsel at his probation violation hearing, and the court did not abuse its discretion in overruling his demurrer or denying his motion to dismiss.
Accordingly, we conclude appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278, 145 L. Ed. 2d 756, 120 S. Ct. 746.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, J. and CURRY, J.