Opinion
D060427
03-20-2012
THE PEOPLE, Plaintiff and Respondent, v. RONALD L. HARKOVICH, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
(Super. Ct. No. SCE292078)
APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.
Ronald L. Harkovich, Jr., filed an appeal of a June 16, 2011 postsentencing order denying his request for termination of formal probation and instead modifying his sentence to summary probation with retention of his Fourth Amendment waiver. Harkovich's appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2009 the People filed a complaint charging Harkovich with two counts: assault with a deadly weapon or force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1); all statutory references are to this Code) with an attached special allegation that, in the commission of the crime, Harkovich personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23), count 1); and resisting an officer (§ 148, subd. (a)(1), count 2). After the preliminary hearing, count 2 was dismissed by the court, and Harkovich was bound over and arraigned on the single serious felony charge. A. Negotiated Plea of September 1, 2009
Harkovich entered into a negotiated plea, agreeing to plead guilty to count 1 in exchange for the People's dismissal of the balance of the charges and allegations and its agreement that the conviction would not constitute a strike. The plea agreement left sentencing to the court, although the court "indicated" to defense counsel that it would grant Harkovich probation. The District Attorney took "no position" on sentencing.
In the plea hearing the court advised Harkovich of his constitutional rights and the immigration and other consequences of pleading guilty, including the requirement for DNA testing, exposure to increased punishment for future offenses, the potential for imprisonment if probation were revoked and the requirement Harkovich waive his Fourth Amendment rights. The parties stipulated to the preliminary hearing as the factual basis for the plea.
At the October 1, 2009 sentencing, the court placed Harkovich on three years of formal probation, ordered that he serve 180 days in county jail and awarded him 144 days of credit. The trial court also ordered Harkovich to pay various fines and fees, as well as restitution in an amount to be later determined by the court. Harkovich stated he had reviewed the terms and conditions of probation with his attorney, understood them, and accepted probation on those terms and conditions. B. Harkovich's Motion to Terminate Probation
On June 16, 2011, before the expiration of his probation, Harkovich made a motion to terminate his probation as "[h]e's had no violations, [and] been law abiding in all respects." The probation officer informed the court Harkovich was in compliance and reports as directed, but he does not have an address. The court indicated its willingness to modify Harkovich's sentence to summary probation, and inquired if the People objected. They did not.
The court modified Harkovich's sentence to summary probation, retaining his Fourth Amendment waiver. The court specifically stated it was not its intention to reduce the felony conviction to a misdemeanor, but that at the successful conclusion of Harkovich's probation he could petition the court for such relief.
Harkovich sought, but was denied, a certificate of probable cause.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel refers to as a possible, but not arguable issue, whether the trial court erred in modifying appellant's probation rather than terminating appellant's probation early.
We granted Harkovich permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonably arguable appellate issues.
Harkovich has been adequately represented by counsel on this appeal.
DISPOSTION
The order is affirmed.
IRION, J. WE CONCUR:
MCCONNELL, P. J.
BENKE, J.