Opinion
A151436
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCINE SCLAFANI, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 468022)
Defendant and appellant Francine Sclafani pled no contest to one count of obtaining a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)); the trial court suspended imposition of sentence and placed appellant on probation for a period of three years. Appellant's counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable sentencing or other post-plea issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplemental brief. We affirm.
All undesignated statutory references are to the Health & Safety Code.
BACKGROUND
In May 2016, appellant was charged by complaint with 12 felony counts of obtaining a controlled substance by fraud (§ 11173, subd. (a)).
In April 2017, pursuant to a negotiated disposition, appellant entered a no contest plea to one felony count of obtaining a controlled substance by fraud with the understanding the trial court would suspend imposition of sentence and place her on probation. The parties stipulated to use of the "Probable Cause Declaration," which was filed with the complaint, as the factual basis for appellant's plea. According to the declaration, appellant, while employed as a medical assistant at a Kaiser medical center in Fremont, created fraudulent account entries in patients' records in order to obtain 780 Norco tablets for personal use due to addiction.
Appellant's plea left open for sentencing the question of whether appellant was eligible for deferred entry of judgment (DEJ) under Penal Code, § 1000, and appellant waived her right to appeal her conviction "[w]ith the exception of the challenge to the availability of [Penal Code, section] 1000 consideration . . . ."
"Effective January 1, 2018, the [DEJ] program authorized by [Penal Code] section 1000 et seq. was converted into a pretrial diversion program. (Stats. 2017, ch. 778.)" (Medical Bd. of California v. Superior Court (2018) 19 Cal.App.5th 1, 4, fn. 2.) For the purposes of this opinion, we refer to it as DEJ.
At the May 2017 sentencing hearing, the trial court denied appellant's request for DEJ, suspended imposition of sentence, and placed appellant on probation for a period of three years. The court also imposed various probation conditions; reserved jurisdiction to impose victim restitution; and imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $300 suspended probation revocation restitution fine (Pen. Code, § 1202.44), a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).
Appellant filed a notice of appeal identifying as an "arguably meritorious grounds of appeal" the question of "[w]hether the Court erred when it denied defendant's motion for [DEJ] pursuant to Penal Code section 1000."
DISCUSSION
Appellant's no contest plea restricts the scope of the appeal before us. Because she did not request a certificate of probable cause, her appeal is limited to "postplea claims, including sentencing issues, that do not challenge the validity of the plea." (People v. Cuevas (2008) 44 Cal.4th 374, 379; People v. Brown (2010) 181 Cal.App.4th 356, 359-360.)
We have reviewed the entire record and have found no arguable appellate issues. The trial court properly denied appellant's request for DEJ under Penal Code, section 1000. That section identifies certain offenses that, depending on the defendant's background and circumstances of the offense, may be eligible for DEJ (now pretrial diversion.) (Ibid.) However, section 11173 is not one of the listed offenses.
Appellant's counsel argued below that DEJ is available for violation of section 11173 because section 11368 ("Forged or altered prescriptions; punishment"), which is enumerated in Penal Code, section 1000, is listed among the "Cross References" to section 11173. That does not provide a basis to read section 11173 into Penal Code, section 1000. --------
The trial court's sentence was proper. The fines and assessments imposed by the court are proper.
Appellate counsel advised appellant of her right to file a supplemental brief to bring to this court's attention any issue she believes deserves review. (See People v. Kelly (2006) 40 Cal.4th 106.) Appellant did not file a supplemental brief. There are no legal issues that require further briefing.
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.