Opinion
B230606
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. DRAYTON EARL MORRIS, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA347641)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Tynan, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Drayton Earl Morris appeals from the judgment entered following revocation of probation granted after his plea of no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The trial court sentenced Morris to 16 months in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the probation report.
On October 9, 2008, Los Angeles Police Department officers were on routine patrol when they saw Morris and a companion standing in the alley behind Normandie Avenue and Martin Luther King Boulevard in Los Angeles. Morris and his friend were smoking from a clear, glass pipe.
As the officers approached to investigate, Morris tossed the pipe onto the ground. Morris and his companion were detained and the pipe, which was found to contain cocaine, was recovered. A search of Morris revealed a bottle containing 31 small pills resembling ecstasy and a plastic bag containing a rock of cocaine. Morris was taken into custody and charged with possession of cocaine.
2. Procedural history.
In a felony complaint filed October 14, 2008, it was alleged that on or about October 9, 2008, Morris committed the crime of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a) (count 1). It was further alleged pursuant to Penal Code sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes law, that on October 7, 2008 Morris suffered a conviction for the serious or violent felony of robbery in violation of Penal Code section 211. Finally, it was alleged that, pursuant to Penal Code section 667.5, subdivision (b), Morris suffered three convictions for which he served prison terms: robbery on October 7, 1988; possession of a controlled substance on September 24, 1998; and possession of a controlled substance on February 20, 2002.
At proceedings held on November 18, 2008, the trial court indicated that it was its understanding that Morris had been accepted into "drug court." Defense counsel stated that Morris had been "screened" and that the committee who determines such things decided that Morris "would be a good candidate for Impact[,] which is the program at Wayside. It's a 180-day drying out period." However, in order to send Morris to the Impact program, there must be a plea. Defense counsel stated: "I said it would probably be easiest to do an open plea to the court where the strike is struck. [However, the trial court] prefers that the three prison priors are admitted to so that there is some time hanging over Mr. Morris' head as an incentive to complete Wayside Impact."
After Morris indicated that it was his desire to plead no contest to the charged offense and admit the prior convictions, the prosecutor informed him that, "[i]n this case the maximum . . . sentence [he] could receive [was] six years on count 1." However, in exchange for his plea, he was going to be entering a drug program.
The prosecutor addressed Morris and stated: "Before the court will accept your plea, you must first understand and give up certain constitutional rights. These rights also apply to any prior enhancements and allegations. [¶] Specifically you have a right to a preliminary hearing. You have [a] right to a jury or court trial. You have the right to remain silent. You have the right to confront and cross-examine witnesses against you. You have the right to use the subpoena power of the court at no cost to you. You have [the] right to present a defense. [¶] Do you understand [and give up] each of th[e]se rights?" Morris responded, "Yes." When he was asked if he also gave up those rights as they pertained to the prior convictions, Morris again responded, "Yes."
After explaining to Morris all the consequences of entering a plea, the prosecutor asked him, "Drayton Earl Morris, in felony complaint BA347641, to count 1, a violation of Health and Safety Code section 11350, possession of a controlled substance, a felony, how do you plead?" Morris answered, "No contest." The prosecutor then asked Morris, "Sir, do you also admit to having suffered the following prior convictions: a violation of Penal Code section 211, on October 7, 1988 . . . , a violation of Health and Safety Code section 11350, on September 24, 1998 . . . , [and] a violation of [Health and Safety Code] section 11350 on February 20, 2002 . . . ?" Morris replied, "Yes."
The trial court commented: "The court, having heard the questioning by the prosecutor and the responses by the defendant, finds the defendant has expressly, knowingly, understandingly and intelligently waived his constitutional rights. [¶] [The] [c]ourt finds defendant's plea to be freely [and] voluntarily made with an understanding of the nature and consequences thereof and there is a factual basis for the defendant's plea and admissions. . . . [¶] It is this court's intent that upon sentencing that the strike that was admitted, the 211, . . . will be stricken based on the interests of justice."
The trial court continued: "This matter's going to be transferred to Department 113 for sentencing. That is going to be drug court. They will give you instructions on all the things that you need to do and what you need to do to get through the program. At that point another judge is going to be handling this. What that means is that you have a right—if sentencing becomes necessary, you have a right to be sentenced by the same judge that heard the plea. That would be me. When you go up and appear in front of the other judge, the other judge is going to be handling your case. [¶] Do you waive that right and agree that any other judge may sentence [you], if sentencing becomes necessary?" Morris answered, "Yes." The trial court then struck Morris's Penal Code section 211 robbery conviction in the interests of justice and transferred the matter to another department, Department 113. In Department 113, the trial court placed Morris into a drug-treatment program.
On April 14, 2009, the trial court asked Morris if he was "[r]eady to move on" and if there was to be "[n]o more backsliding? No more messing around?" After Morris answered, "No[,]" the trial court suspended imposition of sentence and "placed [him] on formal probation for five years [under various] terms and conditions[.]" The court then indicated that the last condition was the most important. The court explained: "You're to obey all laws and orders of the court, orders, rules, and regulations of the Probation Department, the court and jail and Impact. If you violate an Impact rule, even if it's not a crime, it's a violation of probation and could end you up in state prison. Do you understand that?" Morris responded, "Yes, Your Honor." It was then determined that Morris had credit for 272 days served.
At proceedings held on May 28, 2009, the trial court asked how Morris was doing. His counsel answered, "He is doing better, Your Honor. He's coming off a sanction. He relapsed and owned up to it, came into court." When the trial court asked where he had gotten the drugs, Morris stated, "friends." His counsel then added, "He walked into an environment where his daughter was getting high, and I believe that's how he ended up getting high."
After Morris admitted he had been in violation of probation, the trial court stated, "The court finds the defendant is in violation of probation. Probation is revoked." The following colloquy then occurred: "The Court: . . . I'm just wondering what my policy ought to be taking time waivers, I think maybe. [¶] [Defense Counsel]: Back time waivers? [¶] The Court: Uh-huh. I'm—[¶] [Defense Counsel]: I think that policy has been in effect for a while, by my memory. [¶] The Court: I'm a little inconsistent on it. [¶] Mr. Morris, you have a right to receive credit for all the time that you received on this case including good time-work time and treatment time. [¶] Do you understand that right? [¶] [Morris] Yes, sir. [¶] The Court: Do you give it up and waive all your back time for all purposes? [¶] [Morris]: Yes. [¶] The Court: Counsel join? [¶] [Defense Counsel]: Yes. [¶] . . . [¶] The Court: Okay. . . . Probation's revoked, reinstated [and] modified. [¶] . . . [¶] . . . He is to be released to a representative of Impact and taken to [a] residential [facility]. [¶] . . . You made a mistake [Mr. Morris], you know, let's live it down. Okay? Good luck to you."
On September 25, 2009, the trial court received notice from Impact "that the defendant ha[d] absconded from the sentenced offender's treatment program." The court found Morris in violation of probation and issued a bench warrant "in the amount of no bail."
Morris admitted that he had left the program when he appeared at proceedings held on December 7, 2010. He indicated that he had stayed in the sober living unit for two weeks. Defense counsel stated that a probation officer had prepared a report "recommending . . . [the] program and reinstatement." Counsel continued, "Of course, we don't usually do that. S.O.D.C. is binary in that you either complete the treatment program—and if you relapse, you come in and you ask for help . . . . If you get picked up off the street, it's usually prison 99 percent of the time because that is how the program operates." Defense counsel indicated that if a different probation officer had prepared the report, the recommendation would have been state prison.
The trial court addressed Morris and the following occurred: "The Court: . . . [¶] Mr. Morris, you have a right to a formal hearing to determine whether or not you are in violation of probation. [¶] Do you understand that right and give it up, and admit you are in violation of probation for leaving the program? [¶] [Morris]: Yes. [¶] The Court: Counsel join? [¶] [Defense Counsel]: Yes. [¶] The Court: The court finds the defendant is in violation of probation. [¶] Probation is revoked. [¶] Waive further arraignment as to judgment and sentence, no legal cause? [¶] [Defense Counsel]: Yes, submitted. 48 days. [¶] The Court: People? [¶] [District Attorney]: Submitted. [¶] The Court: That is 24 doubled? [¶] [Defense counsel]: Yes. [¶] The Court: The defendant is a danger to himself and the community. [¶] Probation is denied. [¶] He is sentenced to state prison for 16 months, the low term on count 1, [Health and Safety Code section] 11350. [¶] He is to receive credit for 24 days, doubled to 48 days. [¶] . . . [¶] The sheriff is ordered to transport the defendant to the Department of Corrections forthwith. [¶] He is to be housed in a facility that can give him drug treatment if he asks for it."
The trial court ordered Morris to pay a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine (Pen. Code, § 1202.45), a $20 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $50 narcotics laboratory assessment (Health & Saf. Code, § 11372.5) and a 20 percent criminal surcharge (Pen. Code, § 1465.7).
Morris filed a timely notice of appeal and request for a certificate of probable cause on January 25, 2011.
This court appointed counsel to represent Morris on appeal on April 15, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 22, 2011, the clerk of this court advised Morris to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.