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People v. Powell

Court of Appeal of California
Apr 22, 2009
A123657 (Cal. Ct. App. Apr. 22, 2009)

Opinion

A123657

4-22-2009

THE PEOPLE, Plaintiff and Respondent, v. HAROLD JOSEPH POWELL, Defendant and Appellant.

Not to be Published in Official Reports


Counsel appointed for defendant Harold Powell has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, and indicated he wished to do so, as a result of which we extended the time for such supplemental briefing to April 14, 2009. Defendants brief was filed on that date.

We have conducted that examination, conclude there are no arguable issues, and affirm.

Our examination reveals that a felony complaint filed November 1, 2007 charged defendant with three crimes, one felony and two misdemeanors, violations of: (1) Health and Safety Code section 11377, subdivision (a), possession of methamphetamine, a felony; (2) Health and Safety Code section 11364, subdivision (a), possession of paraphernalia, a misdemeanor; and (3) Business and Professions Code section 4140, possession of a hypodermic needle and syringe, a misdemeanor. The complaint also alleged that defendant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

Defendant was arrested and a parole hold placed on him.

On January 16, 2008 defendant withdrew his not guilty plea and entered a plea of no contest to the felony charge and admitted one prison prior. The two other counts were dismissed as were the other two prison priors. The court advised defendant that he was subject to a maximum sentence of four years, though as part of the plea it was agreed that imposition of judgment would be suspended. Defendant was placed on probation for three years and also placed in the Proposition 36 program. The court also ordered defendant to (a) pay a court security fee of $20 and a restitution fund fine of $200; and (b) complete 20 hours of volunteer work. A probation revocation fine of $ 200 was stayed.

Further proceedings were held on January 23, February 6 and February 28, 2008, at the last of which the matter was continued to March 12. Defendant failed to appear on that date, and a probation revocation was set for March 25.

On that date defendant waived his right to a probation hearing after admitting that he failed to appear. The court was also advised that defendant missed the wait-list group on March 5, 2008, tested positive for methamphetamine on February 28, 2008, and missed a urine test on March 4, 2008. The court found a first violation of probation and ordered defendant to report to the probation department and to participate in the drug treatment program.

On April 30, 2008, the probation department requested a violation of probation, alleging that defendant submitted a urine sample which tested positive for methamphetamine on April 9, 2008. On May 7, 2008, defendant again waived his right to a probation hearing, and admitted a violation, for failing a drug test and being arrested on March 12 for a misdemeanor violation of Business and Professions Code section 4060 (possession of a controlled substance without a prescription). On that date the court found a second violation of probation, dismissed the new misdemeanor case, and reinstated probation; it also permitted defendant to enroll in residential treatment.

On November 21, 2008, the probation department alleged another violation of probation. Again, defendant waived his right to a probation hearing and admitted that he failed to report to probation after being in residential treatment and had been arrested for possession of a hypodermic needle and syringe. Defendant thus admitted a third violation of probation, doing so with the understanding that the Business and Professions Code section 4140 charge would be dismissed and that he would receive a year in custody.

Defendant requested credits of 100 days for the time spent in residential treatment. The court indicated that if defendant waived all credits up to November 18, 2008, it would sentence him to one year in county jail. Otherwise, the court would request a sentence recommendation from the probation department. Defendant agreed to waive the credits. The court terminated defendants probation under Penal Code section 1210.1 and imposed a one-year county jail sentence, with credits from November 18, 2008.

Defendant filed a timely notice of appeal.

DISCUSSION

Our review leads to the same conclusion as defendants counsel: there is no issue that requires further briefing.

The revocation hearings complied with the due process and procedural requirements enunciated in People v. Vickers (1972) 8 Cal.3d 451.

Defendant was represented at all times by competent counsel.

The decision to revoke defendants probation is supported by substantial evidence. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.)

The trial court did not impose an unauthorized sentence.

Finally, we note that counsel for defendant filed a statement pursuant to Anders v. California (1967) 386 U.S. 738, 744, noting to this court "the following item `in the record that might arguably support the appeal ": "Did the court err in refusing to award [defendant] any credits for periods in custody prior to November 18, 2008?" Defendants brief raises a similar argument.

We have specifically reviewed the record in that regard, and can discern no error in connection with those credits. Defendant protests that he did not sign a waiver of those credits, known as a Johnson waiver. However, he cites no authority—and we are aware of none—that requires a written waiver. Rather, the waiver must be "knowing and intelligent" (People v. Johnson, supra, 82 Cal.App.3d at p. 188), and the record demonstrates that defendant knowingly and intelligently waived his right to credit for time in custody.

The judgment of conviction is affirmed.

We concur:

Kline, P.J.

Haerle, J. --------------- Notes: People v. Johnson (1978) 82 Cal.App.3d 183.


Summaries of

People v. Powell

Court of Appeal of California
Apr 22, 2009
A123657 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Powell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HAROLD JOSEPH POWELL, Defendant…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

A123657 (Cal. Ct. App. Apr. 22, 2009)