Opinion
C086675
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DERIUS ANTOINE SHARES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 17FE000587)
Appointed counsel for defendant Derius Antoine Shares asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
BACKGROUND
Defendant pleaded no contest to second degree robbery (Pen. Code, § 211) (the robbery case) and was sentenced to a five-year term of probation with conditions including 141 days in jail, time served. Thereafter, the People filed a probation violation petition alleging that defendant was arrested for being a felon in possession of a firearm (§ 29800), and thus had failed to obey all laws--one of his conditions of probation in the robbery case.
Undesignated statutory references are to the Penal Code. --------
Defendant was subsequently acquitted by jury of the section 29800 charge in case No. 17FE107240 (the gun case). Pursuant to the parties' stipulation, the trial court determined whether defendant had violated his probation by reviewing the evidence from the jury trial in the gun case.
In the gun case, L.S. testified defendant was staying in her apartment during the relevant time period and refused to leave. He slept on the couch. She saw him with a gun, which he would hide in her apartment, for the most part in the couch. On September 16, 2017, police came to her apartment. The police asked about a gun, and L.S. told them she thought one was in the couch. Officer Aaron Leahy testified to finding the gun in the couch.
The trial court found L.S. credible and determined by a preponderance of the evidence that defendant violated his probation, specifically that he had failed to obey all laws by possessing a firearm in violation of section 29800. The court revoked his probation and sentenced him to the upper term of five years in prison as well as various fines and fees. The court awarded defendant 141 days of custody credit for the time already served in the robbery case, and 190 days custody credit for the time served in the gun case for a total of 331 days of credit. Defendant timely appealed.
DISCUSSION
Counsel filed an opening brief that sets forth the relevant procedural history and facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant was granted an extension until August 13, 2018, to file such brief but, to date, has not done so.
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Butz, Acting P. J. /s/_________
Hoch, J.