Opinion
E073400
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MICHAEL LOVELACE, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1601644) OPINION APPEAL from the Superior Court of Riverside County. Emma C. Smith, Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Pursuant to a negotiated disposition, defendant and appellant Robert Michael Lovelace admitted he violated a term of his mandatory supervision. The court ordered defendant to serve the remaining 484 days of his mandatory supervision in jail.
After defense counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and two potentially arguable issues: (1) whether the judicial officer was barred by law from taking defendant's admission because she had previously represented defendant; and (2) whether because the court imposed a suspended sentence, the judgment was not yet final such that the recent amendment to Penal Code section 667.5, subdivision (b), limiting prior prison term enhancements to certain sexually violent offenses, should apply retroactively to defendant to permit the striking of his prison priors. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2016, defendant willfully and unlawfully drove or took a vehicle belonging to someone else without the permission of the owner with the intent to deprive the owner of title to and possession of the vehicle, defendant having previously been convicted of felony theft or unlawful taking of a vehicle. The People charged defendant by felony complaint with willfully and unlawfully driving or taking a vehicle without the consent of the owner having previously suffered a conviction for theft or unlawful receiving of a stolen vehicle (count 1, Veh. Code, § 10851, subd. (a); Pen. Code, § 666) and willfully and unlawfully receiving a stolen vehicle having previously been convicted of felony theft or unlawful taking of a vehicle (count 2, Pen. Code, §§ 496d, subd. (a) & 666.5, subd. (a)). The People further alleged defendant had suffered eight prior prison terms (Pen. Code, § 667.5, subd. (b)) and had violated his probation in another case by committing the enumerated offenses (Pen. Code, § 1203.2, subd. (b)).
On April 19, 2016, pursuant to a plea agreement, defendant pled guilty to willfully and unlawfully driving or taking a vehicle without the consent of the owner having previously suffered a conviction for theft or unlawful receiving of a stolen vehicle. (Count 1, Veh. Code, § 10851, subd. (a); Pen. Code, § 666.) Defendant additionally admitted allegations that he had suffered three prior prison terms. (Pen. Code, § 667.5, subd. (b).) Pursuant to the plea agreement, the court sentenced defendant to six years in county jail. Pursuant to Penal Code section 1170, subdivision (h), the court suspended execution of sentence as to four years of that term and ordered defendant placed on mandatory supervision for four years on various terms and conditions accepted by defendant, defendant to serve the remaining two years in jail. The court dismissed the remaining count and struck two of the prior prison allegations.
The record does not reflect what occurred with respect to the remaining three prior prison term allegations. --------
Defendant concurrently admitted the instant offense constituted violations of his existing probation in two separate cases. In the first case, the court revoked probation, sentenced defendant to 64 days of incarceration, and awarded defendant 64 days of credit. In the other case the court "reinstate[d]" defendant on mandatory supervision.
On July 8, 2019, a probation officer filed an allegation of violations of defendant's mandatory supervision. The probation officer alleged as follows: defendant had been arrested on 12 occasions between June 21, 2017, and June 28, 2019; he had been found in violation of his mandatory supervision on five occasions between March 23, 2018, and February 8, 2019, for failure to report to probation; four of those violations had also involved new law violations. On May 15, 2019, defendant refused to test for illegal substances. On May 21, 2019, defendant failed to report to probation as ordered. On June 1, 2019, defendant was arrested for shoplifting. On June 5, 2019, defendant pled guilty to shoplifting; the court sentenced defendant to 36 months of summary probation. Defendant failed to subsequently report to probation and his whereabouts at the time of filing were unknown.
At the hearing on July 12, 2019, pursuant to a negotiated disposition, defendant admitted he violated a term of his mandatory supervision by failing to report. Pursuant to the negotiated disposition, the court ordered defendant to serve the remaining 484 days of his mandatory supervision incarcerated.
Defense counsel timely filed a notice of appeal challenging the validity of the admission. Counsel requested a certificate of probable cause noting the judge who took defendant's admission had represented defendant "on multiple occasions" and had "previously recused herself" in prior cases and at a prior juncture in the instant case. Thus, counsel contended the court should have recused itself prior to taking defendant's admission that he had violated his mandatory supervision. The court granted the certificate of probably cause.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.