Opinion
F061318
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW A. MATHERS, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF28745)
OPINION
THE COURT
Before Levy, Acting P.J., Poochigian, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
On June 1, 2009, appellant, Matthew A. Mathers, pursuant to a plea agreement, pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted enhancement allegations that he served five separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). On September 1, 2009, the court, in accordance with the plea agreement, suspended imposition of sentence and placed appellant on Proposition 36 probation, i.e., probation under the Substance Abuse and Crime Prevention Act of 2000, enacted by the voters as Proposition 36 (Pen. Code, § 1210 et seq.).
On March 30, 2010, appellant admitted an allegation that he violated his probation by missing a drug test. The court continued appellant on probation. On April 13, 2010, appellant admitted allegations that he violated probation by missing three drug tests. The court, again, continued appellant on probation.
On August 10, 2010, appellant admitted allegations he violated his probation by drinking alcohol, testing positive for methamphetamine on one occasion and testing positive for methamphetamine and alcohol on another occasion, and the court revoked appellant's probation.
On September 7, 2010, the court imposed a prison term of seven years, consisting of the two-year midterm on the substantive offense and one year on each of the five prior prison term enhancements, and awarded appellant 89 days of presentence credit, consisting of 45 days of actual time credit and 44 days of conduct credit. At sentencing, appellant argued that he was subject to only four prior prison enhancements because although he had suffered five prior felony convictions, he had served concurrent sentences for two of those convictions. The court stated it would recall and correct the sentence "upon submission of the appropriate proof" that one of the prior prison term enhancements was "not valid."
On October 28, 2010, appellant filed a timely notice of appeal and requested that the court issue a certificate of probable cause (Pen. Code, § 1237.5). In November 2010, the court denied that request.
On December 27, 2010, the prosecutor acknowledged that appellant had served only four separate prison terms, and the court recalled the sentence and resentenced appellant to six years in prison.
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant has filed a supplemental brief in which he argues, as best we can determine, that (1) in violation of his plea agreement, he was denied the opportunity to participate in drug abuse treatment; and (2) the court did not award him presentence custody credit. We affirm.
FACTS
The report of the probation officer indicates that, according to Tuolumne County Sheriff's Department reports, the following occurred on December 28, 2008: A police officer stopped a vehicle for speeding. Appellant was the driver, and he was on parole. The officer searched appellant's person and, in one of appellant's pants pockets, found .03 grams of methamphetamine. Appellant admitted allegations that he violated his probation by drinking alcohol on July 31, 2010, testing positive for methamphetamine on July 30, 2010, and testing positive for methamphetamine and alcohol on August 4, 2010.
DISCUSSION
Appellant's Contentions
Appellant first argues that he did not receive the benefit of his plea agreement because he was somehow denied the opportunity to participate in a drug abuse treatment program. The record contains no information on whether appellant did or did not receive drug abuse treatment services. Appellant's claim is based on matters outside the record and is therefore not cognizable on appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 ["review on a direct appeal is limited to the appellate record"].)
Appellant also contends he was entitled to, and the court erroneously failed to award him, 89 days of presentence custody credit. In fact, as indicated above, the court did award appellant presentence credit in this amount.
Independent Review of the Record
Based on our review of the record, we conclude no other reasonably arguable issues exist.
DISPOSITION
The judgment is affirmed.