Opinion
A153851
07-05-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARMAINE GRAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR331072, FCR326385)
Charmaine Gray appeals from a judgment of conviction and sentence imposed after a no contest plea to multiple offenses. Her attorney has filed a brief seeking our independent review of the appellate record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
A. FCR326385 - Car Case
A criminal complaint charged Gray in November 2016 with felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), felony receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)), two counts of felony forgery (Pen. Code, § 470, subds. (a), (d)), misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364).
Unless otherwise indicated, all statutory references hereafter are to the Penal Code.
B. FCR331072 - Identity Theft Case
A criminal complaint charged Gray in June 2017 with felony possession of a firearm by a felon (§ 29800, subd. (a)(1)), felony possession of ammunition (§ 30305, subd. (a)(1)), misdemeanor theft of identifying information (§ 530.5, subd. (c)(1)), and misdemeanor giving false information to a police officer (§ 148.9, subd. (a)). The complaint further alleged three prior felony convictions and a prior prison term for purposes of section 667.5, subdivision (b).
C. Consolidated Change of Plea Hearing
In December 2017, Gray entered no contest pleas in the car case and the identity theft case, waiving her statutory and constitutional trial rights and stating she understood the consequences of her pleas. It was agreed that the sentence in each case would run concurrent with the sentence in the other case. Defense counsel stipulated to the use of the police reports as the factual basis for her pleas.
In the car case, Gray pled no contest to felony receipt of a stolen motor vehicle (§ 496d, subd. (a)), two felony counts of forgery (§ 470, subd. (a), (d)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and possession of a smoking device (Health & Saf. Code, § 11364). The remaining count, for vehicle theft, was dismissed. Before accepting her plea, the court explained to Gray that, as stated in the written plea form she signed, she would be required to register as a narcotics offender (Health & Saf. Code, § 11590), she was presumptively ineligible for probation (see § 1203, subd. (e)(4)), and she faced a maximum prison commitment of three years, eight months.
In the identity theft case, Gray pled no contest to the misdemeanor counts for theft of identifying information and giving false information to a police officer (§ 530.5, subd. (c)(1); § 148.9, subd. (a)). The felony charges in the identity theft case were dismissed.
D. Consolidated Sentencing Hearing
The probation department recommended that Gray be sentenced to the upper term of four years, four months in local custody for the car case and that probation be denied in the identity theft case.
At the sentencing hearing in January 2018, defense counsel asked that Gray be granted probation, with the condition that she successfully complete a drug court program, because Gray's actions were motivated by her substance abuse, she had expressed remorse for her actions, and she exhibited a desire to change. The prosecution opposed the request, stating that Gray had not taken responsibility for her crimes and she was claiming a desire to change only to get out of punishment.
The court denied probation in both cases, noting that Gray was statutorily ineligible and her case was not an unusual one in which the interest of justice would be served by a grant of probation. (See § 1203, subd. (e)(4); Cal. Rules of Court, rule 4.413.) The court noted that Gray was on probation or parole when she committed the instant offenses, she had 12 felony convictions, she had served a prior prison term, and her prior performance on probation and parole was unsatisfactory. (See Cal. Rules of Court, rule 4.421.)
As to the convictions in the car case, the court sentenced Gray to the upper term of three years for receiving a stolen vehicle (§ 496d, subd. (a)); a consecutive one-third the midterm sentence of eight months for the forgery under section 470, subdivision (a); a concurrent 16-month term for the other forgery under section 470, subdivision (d); and a concurrent six-month term for each of the drug-related convictions under Health and Safety Code sections 11364 and 11377, subdivision (a).
The minute order incorrectly lists the combined term for the two drug-related offenses as one year, six months. The reporter's transcript indicates six months for each offense, for a combined term of one year for those offenses. --------
In the identity theft case, the court ordered Gray to serve 444 days for the misdemeanor convictions, with 444 days of credit for time served.
The total term of imprisonment for both cases was three years, eight months, consistent with the plea agreement and the court's admonition. The court ordered that the sentence be served in local custody pursuant to section 1170, subdivision (h).
The court awarded Gray 448 days of presentence credit in the car case, comprised of 224 days of actual custody credits (§ 2900.5) and 224 days of conduct credit (§ 4019). In the identity theft case, the 444 presentence credits were comprised of 222 days of actual credits (§ 2900.5) and 222 days of conduct credits (§ 4019). The court ordered Gray to pay a $300 restitution fine (§ 1202.4, subd. (b)); a $300 parole revocation fine (§ 1202.45), suspended unless parole is revoked; a $40 court operations assessment (§ 1465.8); and a $30 criminal conviction assessment (Gov. Code, § 70373).
The notice of appeal from the judgment in both cases indicates that the appeal is "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." There is no indication that a certificate of probable cause was requested or obtained.
II. DISCUSSION
Gray's appellate attorney has represented in a declaration accompanying the opening brief that she wrote to Gray at her last known address and advised her that a Wende brief would be filed and that within 30 days she could personally file a supplemental brief raising any issues she wanted to bring to this court's attention. The 30-day period has passed, and we have not received any supplemental brief from Gray.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.