Opinion
B206157
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. BRYAN RAMIREZ, Defendant and Appellant.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for respondent.
Not to be Published
INTRODUCTION
On March 19, 2001, defendant and appellant Bryan Ramirez (defendant) pleaded no contest to evading an officer, with willful disregard. (Veh. Code, § 2800.2, subd. (a).) The trial court placed defendant on formal probation for a period of three years under various terms and conditions, including the condition that he serve 365 days in jail. The trial court awarded defendant 31 days of actual custody credit and 14 days of conduct credit for a total of 45 days of custody credit.
On June 25, 2002, the trial court revoked defendants probation and issued a bench warrant. On October 19, 2007, defendant appeared in court, and the trial court recalled and quashed the bench warrant, apparently upon the representation of defense counsel that "defendant has been in Arizona state prison and extradiction [sic] must have been denied." The trial court ordered defendant remanded with no bail.
Defendants November 16, 2007, probation report indicates that on April 7, 2003, defendant was convicted of an offense in Arizona for which he was sentenced to state prison for a term of "2.6" years.
On November 16, 2007, the trial court held a formal probation violation hearing. The trial court found defendant to be in violation of probation. The trial court sentenced defendant to two years in state prison. The trial court awarded defendant 365 days of custody credit for the time he served as a condition of his probation, plus an additional 32 days of actual custody credit and 16 days of conduct credit, for a total of 413 days of custody credit. (The minute order and abstract of judgment also reflect a total award of 413 days of custody credit, but incorrectly reflect that the award consists of 276 days of actual custody credit and 137 days of conduct credit.)
Defendant filed a notice of appeal and a request for a certificate of probable cause. Although the trial court granted defendants request for a certificate of probable cause, such a certificate was unnecessary because defendants appeal was based on a contested probation violation. (Pen. Code, § 1237, subd. (b); Cal. Rules of Court, rule 8.304(a)(1).) In his certificate request, defendant appears to contend that there is insufficient evidence to support the trial courts finding that he violated his probation because he lived with his brother in Bakersfield and not in Los Angeles County, and he attempted to learn the identity of his probation officer by telephone, but his telephone calls were never returned. Defendant also contends in his certificate request that the trial court improperly calculated his custody credit, failing to credit him with time served for the period from March 17, 2007 to October 10, 2007.
The notice of appeal states that defendants appeal is taken both from the trial courts November 16, 2007, probation violation finding and from his no contest plea. The notice indicates that it was signed on January 9, 2008; received (by persons or entities unidentified) on January 24, 2008; and filed in the Superior Court on February 5, 2008. Because defendants no contest plea was entered on March 19, 2001, any notice of appeal filed in 2008 with respect to that plea would not be timely. (Cal. Rules of Court, rule 8.308(a).) Accordingly, we construe the notice of appeal as relating solely to the trial courts November 16, 2007, probation violation finding.
On appeal, defendants appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. We have reviewed the record and affirm the judgment.
BACKGROUND
Alfonso Powell, an investigator for the Los Angeles County Probation Department testified at defendants probation violation hearing that defendants probation records indicate that defendant never reported to the probation department. Powell ran various law enforcement records to determine defendants location and determined that defendant had been arrested in Prescott, Arizona, convicted, and sentenced to a term of "2.6" years in state prison. Powell determined from defendants probation records that defendant had never been given permission to leave California.
The trial court found defendant in violation of his probation. Defendants specific violations were "leaving the jurisdiction without authorization, suffering a new conviction, failing to report, failing to pay fines and fees."
DISCUSSION
We appointed counsel to represent defendant in this appeal. After examining the record, counsel filed an opening brief asking this court to independently review the record in accordance with People v. Wende, supra, 25 Cal.3d 436. On August 28, 2008, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant did not submit a brief or letter. We have examined the entire record and are satisfied that defendants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
As noted, defendant did not file a brief or letter in response to our August 28, 2008, notice. Even if we were to consider defendants superfluous request for a certificate of probable cause as properly presenting issues to this court, the request does not present a viable appellate issue. Defendants apparent contention that insufficient evidence supports the trial courts finding that he violated his probation relates solely to the trial courts finding that he failed to report to the probation department. However, the trial court also found defendant in violation of his probation because he left California without authorization, he suffered a new conviction, and he failed to pay fines and fees. Defendants certificate request does not contest these findings.
As for defendants contention in his request for a certificate of probable cause that the trial court improperly calculated his custody credit, failing to credit him for time served for the period from March 17, 2007 to October 10, 2007, the record on appeal does not show that defendant was in custody related to this case during that period, or at all. Accordingly, the record does not support defendants contention.
DISPOSITION
The order is affirmed.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.