Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA085651 David C. Brougham, Judge.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BIGELOW, J.
On January 12, 2009, Pomona Police Department officers arrested David Mateo for possession of cocaine. On January 13, 2009, the People filed a felony complaint charging Mateo with one count of possession of cocaine, with an allegation that he had suffered a prior strike in 2007 –– a juvenile adjudication for robbery.
At Mateo’s arraignment on January 14, 2009, the trial court (Hon. Thomas Falls) stated its understanding that Mateo had agreed to enter a plea, and Mateo agreed his plea would be subject to the following conditions as explained by the prosecutor: “[S]omeone in the District Attorney’s Office... thought... you’re not eligible for [the deferred entry of judgment (DEJ) program], but you are eligible for Prop. 36. Your lawyer disagrees with that, and I told her that’s fine. I will take your plea for the [DEJ] program.... [¶] If, however, you get over there to the drug court and they decide you’re not eligible for deferred entry of judgment, then... you’re not going to be allowed to withdraw your plea. We will treat this as a Proposition 36 plea.... [¶] [If] you get deferred entry of judgment and everything your lawyer told you about it,... the drug court handles it. [¶] If not, you’re going to switch from deferred entry of judgment. This will be a plea for Proposition 36. That’s an alternative drug program.” Immediately thereafter, Mateo waived his right to a preliminary hearing, and stipulated that the felony complaint would be deemed a felony information for all purposes. Mateo then waived his constitutional trial rights both orally and in writing, and pleaded guilty to possession of cocaine, and admitted he had suffered a prior juvenile adjudication “for Penal Code section 211” in 2007.
Following an unreported sidebar conference at the DEJ determination hearing on February 4, 2009, Mateo’s counsel advised the trial court (Hon. David Brougham) that Mateo “would like to accept Prop 36... if the court could articulate more clearly on the record the [reasons for the] denial of his... suitability” for the DEJ program. The court agreed, and stated the following reasons for rejecting the DEJ program: “I do find that you are eligible but not suitable for DEJ. And my reasons for a finding against suitability are that fact that two years prior to [the current drug] incident you committed a robbery for which you were convicted in juvenile court; and a year before this incident you were arrested for assault with a deadly weapon. And having two crimes, two arrests, one of which was a conviction, albeit in juvenile court,... the overall circumstances indicate to me when I look at the... DEJ statute, that you are not the person envisioned for the program.... The two crimes of violence were my bigger concern but there were also three failures to appear.... [A]lthough a juvenile conviction for a serious crime like a robbery may not necessarily qualify as a felony conviction within the meaning of the statute, I think that it is certainly a circumstance that the court can take into consideration on suitability and therefore I find he’s not suitable.”
The trial court found Mateo eligible for sentencing under Prop. 36 (see Penal Code § 1210.1), and placed him on probation for 36 months under prescribed terms and conditions. The court released Mateo on his own recognizance. The court ordered Mateo to contact the Community Assessment Service Center on his release, and to attend three Narcotics Anonymous meetings a week until he got into a drug program, and to return by March 17, 2009, with proof of compliance. Mateo agreed to the terms and conditions set out by the trial court.
Mateo filed a timely notice of appeal, and we appointed appellate defense counsel. On July 27, 2009, Mateo’s appointed counsel filed an opening brief raising no issues. On the same day, we notified Mateo by letter that he could submit within 30 days any ground of appeal, argument or contention which she wished us to consider. Mateo has not filed a response. We have independently reviewed the record submitted on appeal, including an augmented filing, and are satisfied that Mateo’s appointed counsel has fulfilled her duty, and that no arguable issues exist. (See People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)
DISPOSITION
The judgment is affirmed.
We concur: FLIER, Acting P. J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.