Opinion
A147518
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SEAN SHAFFER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Lake County Super. Ct. Nos. CR939426, CR940776)
Appellant Michael Sean Shaffer appeals from an order revoking his postrelease community supervision (PRCS) and requiring him to serve 180 days in the county jail for his third PRCS violation (CR 939426), plus a consecutive 180 days in the county jail for his fourth PRCS violation (CR 940776). Appellant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel submitted a declaration stating that she notified appellant that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Counsel also advised appellant of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No supplemental brief has been filed by appellant personally.
BACKGROUND
On March 13, 2014, appellant was convicted of evading a peace officer. (Pen. Code, § 2800.2, subd. (a)) and placed on PRCS for a period not to exceed three years. In June 2015, appellant had sustained his third violation of PRCS (CR 939426) for failing to submit monthly reports and committing new law violations.
At sentencing he was reinstated to PRCS and ordered to serve 180 days, less applicable credits, in residential treatment.
On November 13, 2015, the probation department received a probable cause declaration from the Lake County Sheriff's Office, indicating that appellant had been arrested on November 10, 2015, following a probation search at a residence in Kelseyville.
According to the declaration, appellant was sitting in a vehicle in the driveway of the residence. A records check revealed that the vehicle had been reported as stolen. While searching the vehicle, detectives located approximately 13.4 grams of methamphetamine, a digital scale, and a broken methamphetamine pipe. Numerous other items, believed to be stolen, were found in the vehicle.
On November 16, 2015, the probation department filed a revocation petition (CR 940776), alleging appellant had violated PRCS by failing to enter treatment, failing to submit monthly reporting forms for July 2015 through November 2015, possessing controlled substances, and engaging in unlawful conduct.
Appellant admitted the violation—his fourth at a December 15, 2015 PRCS revocation hearing. At the January 19, 2016, sentencing hearing, the court noted it had "two different custodial sanctions . . . [o]ne that was handled some months ago" (CR 939426) and the present one (CR 940776) As to the first sanction (CR 939426), the court remanded appellant to serve his previous, "standing sentence" of 180 days in county jail, less 65 days credit. In the second matter (CR 940776), the court revoked and reinstated PRCS, and ordered appellant serve 180 days in county jail, less 96 days credit, consecutive to the previously imposed sanction in CR 939426. The court also extended the term of appellant's PRCS to December 7, 2017.
Whether the protection afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from a postjudgment order—after a defendant has had an opportunity to appeal the original conviction—remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel's representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been reluctant to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551, 554-556; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535-537; In re Sade C. (1996) 13 Cal.4th 952, 966; People v. Kisling (2015) 239 Cal.App.4th 288, 290; People v. Serrano (2012) 211 Cal.App.4th 496, 503.) Nonetheless, in the absence of published authority to the contrary, we believe it prudent to adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded an opportunity to file a supplemental brief.
Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to appellant.
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
STREETER, J.