Opinion
A133619
03-28-2012
THE PEOPLE, Plaintiff and Respondent, v. EMILE PERNELL RICHARD, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR244431)
Defendant Emile Pernell Richard, Jr. appeals following revocation of probation and execution of a prison sentence. Defendant's appointed counsel on appeal reviewed the record of this case, did not identify any trial court errors, and asked this court for an independent review of the record to determine if any arguable issues exist for review on appeal. (Anders v. California (1967) 386 U.S. 738, 744; People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende (1979) 25 Cal.3d 436, 441-442.) Defendant was advised that he could file a supplemental brief with this court raising any issues he wished to call to our attention, and has done so. We have reviewed the record and, finding no errors or arguable issues for review, affirm the judgment.
I. FACTS
Defendant was a passenger in a vehicle stopped because it did not have a front license plate displayed. The investigating police officer learned that defendant was on parole and conducted a parole search. The officer found two baggies of methamphetamine in defendant's shoes. Defendant tried to run away but was apprehended and subdued. Defendant was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)).
After motions to suppress evidence were denied, defendant entered pleas of no contest to all of the charges, admitted an allegation that he had suffered a prior prison conviction and a prior unlawful substance conviction, and was sentenced to seven years in state prison. Execution of sentence was suspended and defendant was placed on probation with various conditions, including drug abstinence and completion of a substance abuse treatment program. Defendant agreed to waive all accrued custody and conduct credits, amounting to about one year.
Defendant filed an appeal challenging the denial of his motion to suppress. We concluded that the motion to suppress was properly denied and affirmed the judgment. (People v. Richard (March 27, 2009, A121768) [nonpub. opn.].)
Defendant failed on probation. In late 2008, probation was revoked but reinstated after defendant admitted using drugs. Defendant was ordered to complete a residential substance abuse treatment program and agreed to waive all accrued credits and all future credits for time in the program if he violated probation and sentence was executed.
Defendant was questioned closely on his decision to waive credits in exchange for a further grant of probation. "[DEFENSE COUNSEL]: Mr. Richard, right now you have 50 actual days in custody, plus an additional 24 [Penal Code section] 4019 credits. You may also spend additional time in custody between now and when you are placed in the program, as well as the time you spend in the program. [¶] Do you understand that you don't have to waive that time you were otherwise entitled to those credits for all that time you spent in custody, or in the program? [¶] THE DEFENDANT: Yeah. [¶] [DEFENSE COUNSEL]: Do you understand that? [¶] THE DEFENDANT: Yeah. [¶] [DEFENSE COUNSEL]: The Judge is asking if you are willing to waive those credits as a condition of having your probation reinstated. [¶] Do you understand that? [¶] THE DEFENDANT: Yes. [DEFENSE COUNSEL]: Do you understand that once you waive credits you can never have those credits reactivated or bring them up again in any way. Once they are waived they are gone, and they are gone for good. [¶] Do you understand that? [¶] THE DEFENDANT: Yes. [¶] [DEFENSE COUNSEL]: Understanding all that, are you willing to waive credits for all the time you spent in custody currently, which I indicated is 74 days as of today, plus any additional time you will spend in custody pending placement, plus any time you spend in a program. [¶] Are you willing to waive those credits? [¶] THE DEFENDANT: Yes. [¶] [DEFENSE COUNSEL]: Join. [¶] THE COURT: All right. Well, Mr. Richard, you already waived a year[']s worth of credits when we were here last time in May. You know, that was the year that you were originally sentenced to in this case. Those credits were waived, and now you are waiving the additional time, including not only the time you have been in custody through today, but all other custody, program credits, credits of any type you would otherwise be available, and this credit waiver will go into effect if you violate again. [¶] Do you understand? [¶] THE DEFENDANT: Yes. [¶] THE COURT: Obviously, if you don't violate again, this waiver won't have any effect on you, but if you do violate and you are back here, you can be sentenced then to the suspended state prison term that is now in effect of seven years, and you won't get one day[']s worth of credit for the time you would otherwise be entitled to. [¶] THE DEFENDANT: Yes. [¶] THE COURT: Do you understand all this? [¶] THE DEFENDANT: Yes. [¶] THE COURT: And you are willing to waive credits? [¶] THE DEFENDANT: Yes. [¶] THE COURT: All right. With that understanding, then the defendant is going to be again placed on formal probation. And all prior terms and conditions remain in full force and effect."
Defendant entered a six-month residential treatment program in December 2008. He was terminated about five months later in May 2009 for having excessive disciplinary incidents. Probation was revoked for failing to complete the program but was reinstated in July 2009. Defendant was again ordered to complete a residential treatment program and again waived all credits. The court warned defendant: "Mr. Richard, this is really your last opportunity. There is no other place you can go with this. I am singularly unimpressed with the [argument] that you should get some kind of a benefit for the time that you have waived already. You have gotten more than what the Court promised you in exchange for the credit waiver. If you are back here again - and I guess we should clarify this. [¶] In order to do this, I'm going to require that the defendant continue to waive all credits in the event of a future violation. [¶] Do you understand that, Mr. Richard? [¶] THE DEFENDANT: Yes, sir. [¶] I can't order you to do that, and I know I have explained that before, but if you want probation at this time, you are going to have to agree to the credit waiver. [¶] Are you willing to do that? [¶] THE DEFENDANT: Yes, sir. [¶] Do you understand, sir, that this means if you are back here again with another violation, that this seven-year term in the Department of Corrections will in all likelihood be imposed, without the benefit of any credits you would otherwise be entitled. [¶] THE DEFENDANT: Yes. [¶] THE COURT: Do you understand that? [¶] THE DEFENDANT: Yes."
In June 2010, defendant was terminated from the treatment program for violation of program rules, and he failed to report to the probation department. A bench warrant was issued and defendant was not apprehended until almost ten months later, in April 2011, when he was arrested on new criminal charges. A contested probation revocation hearing was held in July 2011, and defendant was found in violation of probation for failing to complete the program and failing to maintain contact with his probation officer. On August 24, 2011, the court denied further probation and ordered execution of sentence. The court noted that defendant had waived all credits but, in a grant of leniency, awarded defendant credit of 452 days for the actual time spent in the two residential treatment programs.
II. DISCUSSION
Appointed counsel has not identified any issue for our review. Defendant raises a single issue in his brief concerning conduct and custody credits. Defendant asks for restoration of all waived credits. Defendant admits that he waived credits in order to receive probation and a chance at rehabilitation in a treatment program but maintains that he "did not know or understand exactly what [he] was doing" when he waived credits.
The transcript of the proceedings, quoted at length above, shows that defendant was fully advised of the nature and consequences of the credit waiver and that he knowingly and voluntarily waived custody and conduct credits in exchange for grants of probation. Defendant waived all credits (for time in custody as well as time spent in the programs) after it was explained to defendant that "you can never have those credits reactivated or bring them up again in any way. Once they are waived they are gone, and they are gone for good." The court gave defendant far more than he was due when it partially relieved him from the waiver and granted defendant credit for time spent in the programs defendant failed to complete. There is no basis for further relief on appeal.
In addition to considering the issue raised in defendant's brief, we have also independently reviewed the entire record and find no errors or arguable issues for review. (Anders v. California, supra, 386 U.S. at p. 744; People v. Wende, supra, 25 Cal.3d at pp. 441-442.) Substantial evidence supports the trial court's finding that defendant failed to meet the terms of his probation when he failed to complete a treatment program and absconded. The court acted reasonably in denying a further grant of probation given defendant's repeated violations of probation. Execution of sentence was proper.
III. DISPOSITION
The judgment is affirmed.
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Retired Associate Justice of the Court of Appeal, First Appellate District, Division 4, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Ruvolo, P.J.
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Reardon, J.