Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR537091
Marchiano, P.J.
Defendant Kenneth Adrian Fuller appeals from an order reinstating him on probation. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief. We have reviewed the entire record, as well as defendant’s supplemental brief, find no arguable issues, and affirm the order for probation.
Background
Defendant originally pleaded no contest to receiving stolen property (Pen. Code, § 496, subd. (a)). In September 2008, execution of sentence was suspended and he was placed on probation.
According to the current probation report, a police officer contacted defendant on March 18, 2009, in connection with a family disturbance, determined that he was under the influence of a controlled substance, and arrested him. Defendant told the arresting officer that he had used methamphetamine to stay awake while playing cards at a casino.
Defendant told the probation officer that he was attempting to establish a scrap recycling business, but “he has had a gambling addiction and gambled away $600 to $700 of his business funds. He further noted that part of the money belonged to his sister. The defendant indicated that his behavior increased his stress level, and ‘I got desperate and used.’ ” Defendant’s sister told the probation officer that she gave defendant “$2,000 to assist with living expenses and to go towards his business. Unfortunately, the defendant spent most of these funds gambling and to purchase methamphetamine.” She said, “ ‘I was trying to help him, he has a horrible drug problem.’ ”
Defendant pleaded guilty to violating Health and Safety Code section 11550, subdivision (a) (misdemeanor unlawful use of methamphetamine), and was found to have thereby violated probation. The probation report recommended execution of the prison sentence, and the prosecution argued for that outcome at the sentencing hearing.
The court instead offered defendant probation with drug treatment, provided he waived his accrued custody credits to “demonstrate [his] sincerity about following through with [the treatment].” Defendant said that he wanted to “speak to a couple [of] things” in the probation report, and the court replied that “[t]hose things would be completely irrelevant” to the disposition. After defendant conferred with his counsel, counsel told the court that defendant objected to the statements attributed to his sister in the probation report, but that he was prepared to waive the custody credits in exchange for reinstatement of probation, with drug treatment. The credits were waived and probation was reinstated.
Discussion of Issues
Defendant’s brief raises three issues, two of which involve the sister’s statements in the probation report. Defendant submits that the court deprived him of due process because it did not allow him to controvert his sister’s allegation that he had gambled away her money, and that his counsel was ineffective for failing to investigate the truth of that allegation. Defendant indicates that his sister gave him less than $2,000 for his business, and that she owes him $200. Defendant argues that an evidentiary hearing is required on those issues, and to determine whether he “ever gamble[d] money that factually belonged to his sister or anyone else.”
However, according to the probation report, defendant himself admitted that he had a gambling addiction and that some of the money he had gambled away belonged to his sister. In any event, because there is no prospect that an examination of any of the factual issues defendant raises could have yielded a different outcome, no prejudice is apparent under any standard.
Defendant’s other argument is that the court violated the ex post facto clause of the federal Constitution by requiring him to waive custody credits. However, this clause applies “only to retrospective criminal statutes” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 10, p. 21, italics added), and not to discretionary sentencing decisions like the one here.
Disposition
Defendant was represented by counsel at all stages in the proceedings below. There was no error in the court’s disposition. There are no meritorious issues to be argued.
The order for probation is affirmed.
We concur: Margulies, J., Banke, J.