Opinion
C085268
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOEL MATTHEW GAGNON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P13CJR0002)
Appointed counsel for defendant Joel Matthew Gagnon has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 19, 2011, defendant entered a negotiated plea of no contest to evading an officer (Veh. Code, § 2800.2, subd. (a)--count I) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)--count III) in exchange for a stipulated sentence of three years in state prison and dismissal of all pending charges and allegations against him. The parties stipulated to the following factual basis to substantiate the plea: On April 9, 2011, a police officer observed defendant on a motorcycle with an expired registration. When the officer attempted to conduct a traffic stop, defendant led the officer on a high-speed pursuit through El Dorado, Sacramento, and Placer Counties. Defendant was eventually detained in Sacramento County after he ran out of gas. During the pursuit, defendant discarded a pouch containing methamphetamine and heroin, which was later recovered by law enforcement.
Upon defendant's request for immediate sentencing, the trial court denied probation and sentenced defendant to the upper term of three years on count I, plus a concurrent term of three years on count III, for an aggregate term of three years in state prison. The court awarded defendant 388 days of presentence custody credit (194 actual days plus 194 days of conduct credit) and imposed fees and fines, including a $200 restitution fine (Pen. Code, § 1202.4); a $200 parole revocation fine, stayed pending successful completion of parole (§ 1202.45); an $80 court operations assessment (§ 1465.8, subd. (a)(1)); a $60 criminal conviction assessment (Gov. Code, § 70373), a $180 criminal laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $540 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)).
Undesignated statutory references are to the Penal Code. --------
Defendant was released from state prison under postrelease community supervision (PRCS) on October 8, 2012. Thereafter, six petitions for revocation of probation were filed against him. The first petition, filed on May 16, 2013, alleged defendant failed to report to probation as directed, and failed to provide residence information and his whereabouts were unknown. Defendant admitted failing to report as alleged in the petition. The court revoked and reinstated PRCS on the same terms and conditions and ordered defendant to serve 90 days in county jail.
The July 26, 2013, petition alleged defendant failed to report to probation as directed, and failed to provide residence information and his whereabouts were unknown. Defendant admitted failing to report as alleged in the petition. The court again revoked and reinstated PRCS on the same terms and conditions and ordered defendant to serve 180 days in county jail and contact the probation department within 24 hours of his release from jail.
The October 24, 2014, petition alleged defendant failed to abstain from possession, use, or involvement with restricted dangerous drugs, narcotics, or marijuana, in that he provided a urine sample, which tested positive for methamphetamine, and defendant was not residing at the residence address provided and his whereabouts were unknown. Defendant admitted the drug use allegation. The court again revoked and reinstated PRCS on the same terms and conditions and ordered defendant to serve 180 days in county jail. The court further ordered that defendant be assessed for placement in a drug treatment program, complete a drug program, and contact the probation department within 24 hours of his release from jail.
The March 3, 2016, petition alleged defendant failed three times to report to the community corrections center as directed; failed twice to abstain from possession, use, or involvement with restricted dangerous drugs, narcotics, or marijuana, in that he provided a urine sample, which tested positive for methamphetamine; and was not residing at the residence address provided and his whereabouts were unknown. Defendant admitted one of the alleged failures to report as directed. The court once again revoked and reinstated PRCS on the same terms and conditions and ordered defendant to serve 180 days in county jail. The court further ordered that defendant remain in county jail pending availability in a drug treatment program, and that if defendant left or failed drug treatment he would give up all time credits. The court ordered defendant to contact the probation department immediately upon his release from jail.
The November 7, 2016, petition alleged defendant failed four times to report to the community corrections center as directed, and failed once to report to the sober living environment as directed. Defendant admitted one of the alleged failures to report. The court again revoked and reinstated PRCS on the same terms and conditions and ordered defendant to serve 180 days on county jail and contact the probation department within 24 hours of his release from jail.
The sixth petition, filed February 15, 2017, alleged defendant failed to report to the probation officer as directed and his current whereabouts were unknown.
On May 1, 2017, after having been arrested and arraigned on the February 15, 2017, petition, defendant moved for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court granted the motion and appointed substitute counsel.
On June 19, 2017, defendant requested dismissal of the PRCS proceedings claiming his PRCS expired three years after his release from state prison on October 8, 2012. Following a hearing, the court denied defendant's request, finding 853 days of defendant's PRCS had been tolled pursuant to sections 1203.2 and 3456, subdivision (b) due to the issuance of arrest warrants in the probation revocation proceedings following defendant's release from prison. The court further found that, in light of the 853 days of tolling, defendant's PRCS would not terminate until February 7, 2018. Thereafter, defendant admitted failing to report as alleged in the February 15, 2017, petition. The court once again revoked but reinstated PRCS on the same terms and conditions, ordered defendant to serve an additional 180 days in county jail minus 180 days credit for time served, and discharged defendant from county jail. The court further ordered defendant to contact the probation department within 24 hours of his release from jail.
Defendant filed a timely notice of appeal.
II
Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.