Opinion
D048683
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CORY LINDSEY, Defendant and Appellant.
Michael Cory Lindsey appeals revocation of probation and execution of a stayed sentence. On September 13, 2005, Lindsey entered a negotiated guilty plea to selling a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) The court sentenced him to prison for the four-year middle term, suspended execution of sentence, and placed him on three years probation. On March 21, 2006, the court held an evidentiary hearing on a petition to revoke probation. It revoked probation and lifted the stay on the prison sentence. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On April 13, 2005, San Diego Police officers conducted a buy/bust operation in the area of 400 15th Street. An undercover officer was standing at the intersection of 15th and Island with an unidentified male and female. Lindsey approached. The female asked him if he was selling drugs. Lindsey said he was. Lindsey asked the undercover officer what he wanted and exchanged with the officer an off-white substance, later identified as cocaine base, for $20.
Less than four months after Lindsey was placed on probation, which included a condition he obey all laws, he was apprehended after locking himself in a restroom on a school campus in City Heights. The officers who apprehended him found in his pocket a razor blade with residue of cocaine base. A blood test revealed cocaine in his blood and Lindsey admitted using cocaine base that day.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether the record supports Lindseys claim made in the request for a certificate of probable cause that his trial counsel did not provide effective assistance; (2) whether there was sufficient evidence of a probation violation; and (3) whether the trial court abused its discretion when it ordered execution of the stayed prison sentence.
We granted Lindsey permission to file a brief on his own behalf. He has responded. Lindsey contends he was denied a fair trial through the officers failure to arrest the couple that was standing with Lindsey when the undercover officer approached, he was denied effective assistance of appellate counsel through failure to raise legal issues, and the trial court breached the plea agreement when it imposed a four-year sentence after advising him that he faced a three-year sentence under the agreement.
Failure to arrest the male and female
A defendant cannot raise an issue on appeal after probation revocation when the issue was not raised in a timely appeal from the conviction. (People v. Munoz (1975) 51 Cal.App.3d 559, 563.) Lindsey did not file a timely notice of appeal raising the claim that he was denied a fair proceeding through failure to arrest the male and female. (See Cal. Rules of Court, rule 30.1(a).)
Breach of plea agreement
Lindsey argues the trial court breached the plea agreement when it imposed a four-year sentence after advising Lindsey the People would not oppose a three-year sentence. Because he challenges the sentence imposed after running of the time to appeal the conviction, People v. Munoz, supra, 51 Cal.App.3d 559 does not apply. However, in the words of People v. Turner (1975) 44 Cal.App.3d 753, 757:
"[A]fter the violation occurred, there was no plea bargain involved because the bargain contemplated the initial sentencing proceeding only. It was within the discretion of the trial court to look at the situation anew, to continue or revoke probation, to commit Turner to the Youth Authority, a local or a state institution. There was no abuse of discretion."
Effective assistance of appellate counsel
Failure of appellate counsel "to raise crucial assignments of error, which arguably might have resulted in a reversal," deprives an appellant of effective assistance of appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202-203.) After reviewing the entire record we find no arguable appellate issues.
Effective assistance of trial counsel
In his request for a certificate of probable cause, Lindsey told the court he was denied effective assistance of counsel through his attorneys failure to remove himself from the case after not filing any defense motions and failing to prepare for trial. Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner expected of a reasonably competent attorney and that counsels acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) The record lacks information as to what motions Lindsey believes competent counsel would have filed and what defense counsel did not do in preparation for trial. Lindsey has not proven his trial counsel was incompetent or that he suffered prejudice from counsels conduct.
Sufficiency of evidence
In reviewing the sufficiency of the evidence, " [T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings." (Estate of Leslie (1984) 37 Cal.3d 186, 201.) Because Lindsey entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) Penal Code section 1203.2, subdivision (a) authorizes courts to revoke and terminate probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation." Here, the condition violated was that Lindsey violate no laws.
A probation violation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Kurey (2001) 88 Cal.App.4th 840, 849.) Here, at the evidentiary hearing Officers Pollock and Botkin testified that during a search of Lindsey, they found a razor blade containing residue of cocaine base in Lindseys pocket and Lindsey admitted using cocaine base the day of his arrest. Possession of a controlled substance and possession of narcotics paraphernalia are proven with evidence the defendant exercised dominion and control over the substance and paraphernalia, had knowledge of its presence and had knowledge that the substance was a controlled substance. (People v. Groom (1964) 60 Cal.2d 694, 696.) These elements may be established by circumstantial evidence and reasonable inferences drawn therefrom. (Id. at 696-697.) "Constructive possession occurs when the accused maintains control or a right to control the contraband." (People v. Newman (1971) 5 Cal.3d 48, 52.) Viewing the evidence in the light most favorable to the judgment below, the contraband was in Lindseys possession. Given this record, the trial court did not err by finding that a preponderance of the evidence showed that Lindsey had violated laws more serious than minor traffic violations while on probation.
Execution of the suspended prison sentence
In People v. Howard (1997) 16 Cal.4th 1081, 1088, the Supreme Court held that when a trial court imposes but stays execution of sentence and places the defendant on probation, the imposed sentence cannot be reduced at a later sentencing hearing after revocation of probation. The question thus becomes whether the four-year term imposed and stayed at the initial sentencing hearing was an abuse of discretion. The middle term for selling a controlled substance is four years. (Health & Saf. Code, § 11352, subd. (a).) Lindsey did not object at the time of sentencing. ". . . [C]omplaints about the manner in which a trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Lindsey on this appeal.
DISPOSITION
The judgment is affirmed.
We Concur:
OROURKE, J.
AARON, J.