Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR900639.
Swager, J.
Defendant appeals from a judgment following revocation of a grant of probation. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has advised defendant that he can file a supplemental brief raising additional points he would like to call to our attention. He has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
Statement of Facts and Procedural History
Since the appeal is taken from an admission, we need only concisely recite the facts pertinent to the underlying petition as necessary to our limited review on appeal.
A felony complaint was filed on July 13, 2005, charging defendant with one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The complaint resulted from a routine traffic stop on February 1, 2004. Defendant was a passenger in the vehicle and was observed tossing two “small plastic baggies containing crystalline methamphetamine out the passenger window of the vehicle.”
On November 4, 2005, defendant entered a plea of guilty to the charge set forth in the complaint. He was placed on three years’ probation pursuant to the provisions of Proposition 36 (Pen. Code, § 1210 et seq.). Various terms and conditions of probation were imposed upon defendant including provisions that defendant participate in and successfully complete a drug treatment program, not possess any illegal substance, controlled substance or marijuana, abstain from the use of any intoxicating liquor and not be in or about any place where the primary item sold or dispensed is an alcoholic beverage. In addition statutory fees and fines were imposed.
On April 21, 2006, a probation officer filed with the court a report and affidavit requesting that defendant’s grant of probation be revoked. The report listed the violation as “non-drug related: 647(f), use of alcohol in public.” It alleged that defendant was not participating in a drug program and had tested positive for marijuana on two different dates. It further alleged that on February 21, 2006, he was arrested for “Public Intoxication” at a public tavern. The court summarily revoked probation on May 1, 2006.
On July 10, 2006, defendant orally made a Marsden motion. A hearing was held on the same date and the motion was denied. At a hearing held on July 14, 2006, defendant admitted that he violated probation by failing to participate in the drug treatment program, tested positive for marijuana and was drunk in public. The matter was then referred to the probation department for a supplemental report.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant filed a written Marsden motion on August 25, 2006. Following a hearing on the same date, defendant’s counsel was relieved and new counsel appointed. On September 1, 2006, new counsel advised the court that defendant wanted to withdraw his admission to the probation violations. Counsel requested additional time to review the transcript of the admission. On September 29, 2006, counsel for defendant advised the court that he had found no legal grounds to withdraw the “Plea.”
On November 9, 2006, defendant again filed a written Marsden motion. The court again held a hearing, the motion was granted and new counsel was appointed.
On December 15, 2006, a sentencing hearing was held at which defendant testified. At the conclusion of the hearing the court found that: “Since this was a probation pursuant to [Penal Code section] 1210.1 and that this is a nondrug (sic) related offense, the Court has full discretion as to whether or not to reinstate your probation. The Court finds that it is not within the best interest of the public to reinstate your probation.” Defendant was then sentenced to two years in state prison and ordered to pay various fines and fees. He was awarded total custody credits of 236 days.
On July 10, 2007, this court granted defendant’s application to file a late notice of appeal. His application for a certificate of probable cause was referred to the trial court which denied the request on July 23, 2007.
DISCUSSION
Penal Code section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of an admission of a probation violation, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the admission for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant’s waiver and admission, therefore, bar him from making any argument he did not in fact violate the terms of his probation and any argument that some pre-admission ruling was error. As defendant has not obtained a certificate of probable cause, he may not attack the validity of his admission.
The defendant was represented by counsel at all stages of the proceedings. Prior to entering his admission he was fully advised of his constitutional rights and waived those rights. Although defendant was on Proposition 36 probation he was not entitled to have his probation reinstated since he admitted a non-drug related violation. (Pen. Code, § 1210.1, subd. (e)(2).) In view of defendant’s admitted lack of compliance with the terms and conditions of probation, the court did not abuse its discretion in refusing to reinstate probation. We have found no sentencing errors.
After a full review of the record, we find no arguable issues and, accordingly, affirm the order.
We concur: Marchiano, P. J., Margulies, J.