Opinion
A131269
10-20-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN J. GUTIERREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC069350B)
This is an appeal from an order revoking the probation of defendant Christian J. Gutierrez based upon his admission of a violation of the probationary conditions that he notify the probation department of his whereabouts and of any change to his address.
After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief in a timely manner, but he has not exercised such right.
We have examined the entire record in accordance with People v. Wende. For reasons set forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2009, an information was filed charging defendant with the following crimes: rape (Pen. Code, § 261, subd. (a)(2)); rape in concert with another (Pen. Code, § 264.1); intent to commit rape (Pen. Code, § 220, subd. (a)); sexual battery (Pen. Code, § 243.4, subd. (a)); and false imprisonment (Pen. Code, § 236). Each of these counts included enhancement allegations for personal use of a firearm and infliction of great bodily injury (§§ 667.5, subd. (c), 1192.7, 12022.7, 12022.8).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Following defendant's waiver of the right to a jury trial and negotiated plea of nolo contendere to false imprisonment, the trial court suspended imposition of a sentence and placed him on formal probation for three years subject to various terms and conditions, including that he serve one year in jail.
On April 14, 2010, defendant's probation officer filed an affidavit of probation violation and motion for issuance of a bench warrant based upon defendant's alleged failure to report and to inform the probation department of his whereabouts and of a change in his address. On January 5, 2011, defendant, represented by counsel, waived his right to a contested hearing and freely and voluntarily admitted violating probation by failing to inform the probation department of his whereabouts and of a change in his address. In doing so, defendant acknowledged his understanding that "by admitting that you are in violation of your probation that . . . [the court] will sentence you to the midterm of two years in state prison and . . . probation will be terminated."
The trial court thereafter revoked defendant's probation and sentenced him to the midterm of two years in prison for the underlying false imprisonment offense. In addition, the trial court awarded defendant 564 days of pre-sentence custody time, including 282 days of credit for actual time served plus 282 days of conduct-related credit. This appeal followed.
DISCUSSION
Neither appointed counsel nor defendant has identified any issue for our review. Upon our own independent review of the record, we agree none exists. (People v. Wende, supra, 25 Cal.3d 436.) The trial court revoked defendant's probation after defendant, represented by counsel, freely and voluntarily admitted violating the express probationary conditions that he notify the probation department of his whereabouts and of any change in his address. The trial court then sentenced defendant to the midterm (two years) for a crime to which he pleaded nolo contendere (false imprisonment), and awarded him credit for actual time served and good conduct. The trial court's decisions were in all regards proper. (See People v. Segura (2008) 44 Cal.4th 921, 932 ["During the period of probation, the court may revoke, modify, or change its order suspending imposition or execution of the sentence, as warranted by the defendant's conduct. (§§ 1203.2, 1203.3)"]; see also § 237; Cal. Rules of Court, rule 4.435 ["When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute"].)
Thus, having ensured defendant has received adequate and effective appellate review, we affirm the trial court's judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113; People v. Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
Jenkins, J.
We concur:
McGuiness, P. J.
Pollak, J.