Opinion
F072004
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE ALAN RUSSELL, Defendant and Appellant.
William W. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 1456026, 1435397)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
After a contested hearing, the court found that appellant Terrance Alan Russell violated his probation in case Nos. 1435397 and 1456026 and imposed a three-year prison term. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
From 2007 through 2009, Russell and codefendant Tonya Johnson received food stamps and cash aid from the Stanislaus County Community Services. During the reporting period of January 2008, he and Johnson signed a quarterly eligibility declaration under penalty of perjury stating that no one was employed even though Russell was working. Further investigation determined that during the reporting period from December 2007, through February 2009, Russell and Johnson made other false statements and received a total overpayment of $5,569 (case No. 1435397).
On August 15, 2011, the Stanislaus County District Attorney filed a complaint in case No. 1435397 charging Russell and Johnson with welfare fraud (count I/Welf. & Inst. Code, § 10980, subd. (c)(2)) and perjury (count II/Pen. Code, § 118, subd. (a)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On February 8, 2013, in case No. 1435397, Russell pled no contest to welfare fraud in exchange for the dismissal of the remaining count in that case and a grant of five years' felony probation that included 60 days in local custody. After Russell waived time for sentencing, the court placed him on probation as per his plea agreement and ordered Russell to surrender into custody on May 8, 2013.
Russell also pled no contest to an unrelated charge of possession of methamphetamine (case No. 1454627/Health & Saf. Code, § 11377, subd. (a)) and was placed on Proposition 36 probation for three years in that case. --------
On March 5, 2013, during a probation search of Russell's bedroom, officers found a .22-caliber handgun in a headboard. In a nightstand they found a magazine for .22-caliber ammunition that contained several rounds. (Case No. 1456026.)
On March 6, 2013, Russell bailed out of custody.
On May 8, 2013, Russell failed to turn himself in to begin serving his probationary term in case No. 1435397.
On May 15, 2013, the court issued a warrant in that case for Russell's arrest.
On July 15, 2013, Russell appeared out of custody in court and the court recalled the warrant. After Russell admitted violating his probation in case No. 1435397, the court ordered him to serve an additional 20 days in custody for a total of 80 days in that case. The court also allowed him to remain out of custody and to surrender himself on November 15, 2013.
On September 27, 2013, the Stanislaus County District Attorney filed an amended complaint in case No. 1456026 charging Russell with being a felon in possession of a firearm (count I/§ 29800, subd. (a)) and possession of ammunition by a person prohibited from possessing a firearm (count II/§ 30305, subd. (a)(1)). Afterwards, pursuant to a negotiated plea, Russell pled no contest to both counts and the court sentenced him to two concurrent, upper terms of three years on each count. The court then suspended execution of sentence and placed Russell on probation for three years on the condition that he serve 180 days in custody, consecutive to the 80 days it ordered him to serve in case No. 1435397. The court also vacated Russell's surrender date of November 15, 2013, and ordered him to surrender himself into custody on January 15, 2014.
On March 16, 2015, Lorena Palacio, Russell's probation officer, filed an order to show cause in case No. 1435397 and a probation officer's violation of probation report in case No. 1456026. The order to show cause alleged that Russell violated his probation by failing to report monthly as directed during November and December 2014, and January, February and March 2015, failing to report within seven days of his release from jail on November 8, 2014, failing to report as directed on November 14, 2014, and failing to appear in court on January 9, 2015, in the unrelated drug case. The probation officer's violation of probation report alleged the same violations as the order to show cause.
On July 9, 2015, in case Nos. 1435397 and 1456026, the court held a contested probation violation hearing based on the March 16, 2015, order to show cause and the allegation that Russell failed to report to the probation officer and to obey all laws. During the hearing, Palacio testified that on June 16, 2014, Russell failed to meet with her for a meeting scheduled for that date. On July 10, 2014, Russell met with Palacio and she asked him to provide a urine sample. Russell, however, told the receptionist that he could not wait any longer and told her to give him a "dirty drug test."
On August 28, 2014, Palacio contacted Russell because he had not reported on his monthly day for checking in. Russell told her that he had forgotten to report. On August 29, 2014, Russell provided a urine sample that tested positive for amphetamine and cocaine. Also on that date, Palacio told Russell to report back on September 5, 2014, but Palacio did not report.
On October 28, 2014, Palacio went to see Russell because he had not reported that month. Russell admitted that he had used methamphetamine. On November 13, 2014, Palacio contacted Russell to ask him why he had not reported that month and he told her he had been arrested on November 5, 2014, for new "possession charges." Palacio directed Russell to report on November 14, 2014, but Russell did not report.
After Palacio testified, the court found that Russell violated his probation. It then imposed the previously suspended concurrent prison terms in case No. 1456026 and sentenced Russel to a concurrent 16-month term on his welfare fraud conviction in case No. 1435397.
Russell's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Russell has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.