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People v. Jabin

California Court of Appeals, Fifth District
Jul 11, 2008
No. F054252 (Cal. Ct. App. Jul. 11, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. MF007551A, Clarence Westra, Jr., Judge.

Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.

STATEMENT OF THE CASE

On October 6, 2006, the Kern County District Attorney filed an information in superior court charging appellant Hector Jabin as follows: count 1—felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) with a prior strike conviction (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and count 2—misdemeanor possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)).

On October 10, 2006, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegation.

On April 25, 2007, the court denied appellant’s motion for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118(Marsden). On July 12, 2007, the court conducted another Marsden hearing and granted appellant’s motion for substitution of counsel.

On September 7, 2007, the court denied appellant’s new motion for substitution of counsel under Marsden.

On September 13, 2007, appellant declined a plea offer entailing a sentence of 32 months on count 1.

On September 20, 2007, the court denied yet another motion by appellant for substitution of counsel under Marsden.

On the same date, appellant entered into a plea agreement with the prosecution, withdrew his not guilty plea, pleaded nolo contendere to count 1, and admitted the special allegation. The plea and admission were conditioned upon a maximum term of 32 months in state prison. In exchange, the prosecution agreed to dismiss the misdemeanor count (Pen. Code, § 1385).

On October 9, 2007, appellant filed a sentencing memorandum requesting the superior court to strike the prior strike conviction and to reduce the crime charged in count 1 to a misdemeanor.

On October 19, 2007, the court conducted a sentencing hearing, struck the prior strike conviction (Pen. Code, § 667, subd. (e)), and denied appellant’s motion to reduce count 1 to a misdemeanor (§ 17). The court then denied appellant probation and sentenced him to the middle term of two years in state prison. The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45), and awarded 451 days of custody credits.

On November 15, 2007, appellant filed a handwritten notice of appeal.

On March 19, 2008, this court filed an order construing appellant’s handwritten notice of appeal to include the language: “‘The grounds for appeal are sentencing issues, after entry of a no contest plea, which do not challenge the validity of the plea.’”

STATEMENT OF FACTS

The following facts are taken from the probation officer’s report filed October 19, 2007:

“On September 1, 2006, the defendant, Hector Jabin was contacted during a traffic stop. He originally gave a false name of ‘Roberto Ramirez[,’] but was positively identified by officers as ‘Hector Jabin.’ During a search of the defendant officers located a cigarette box in his right front pocket which contained a small bag of marijuana which was determined to be less than an ounce.

“When officers searched the immediate area where the defendant was sitting in the vehicle, a glass smoking pipe was located. On the seat of the vehicle, next to the defendant’s hat was a small piece of plastic which contained a rock like substance believed to be suspected methamphetamine.

“When interviewed the defendant denied possession of the pipe and then refused to speak further with officers. [¶] A laboratory analysis of the contraband seized determined it to be 20 milligrams of a substance containing methamphetamine (Schedule II).”

DISCUSSION

Appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter of April 25, 2008, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so. Our independent review discloses no reasonably arguable appellate issues. “[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Jabin

California Court of Appeals, Fifth District
Jul 11, 2008
No. F054252 (Cal. Ct. App. Jul. 11, 2008)
Case details for

People v. Jabin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HECTOR JABIN, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Jul 11, 2008

Citations

No. F054252 (Cal. Ct. App. Jul. 11, 2008)