Opinion
F075419
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ROSALBA SIAS, Defendant and Appellant.
Elizabeth J. Smutz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 14CMS3165)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Ellison, J.†
-ooOoo-
Appointed counsel for defendant Rosalba Sias asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising her of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. We affirm.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On May 5, 2014, defendant attacked a man because she believed her daughters were at his house. Defendant caused the man substantial injury.
On December 21, 2015, defendant pled no contest to assault by means likely to produce great bodily harm (Pen. Code, § 245, subd. (a)(4); count 2).
All statutory references are to the Penal Code.
On January 19, 2016, the trial court granted defendant five years of probation. The court informed defendant that she would be "looking at four years in state prison" if she violated probation.
On August 16, 2016, a petition was filed alleging defendant violated probation by committing first degree burglary (§ 459), committing unauthorized use of personal identifying information to obtain property (§ 530.5, subd. (a)), and being terminated from an anger management program due to unexcused absences, failing to complete any hours of community service, and failing to obtain gainful employment.
On August 18, 2016, defendant admitted the probation violation and pled guilty to unauthorized use of personal identifying information to obtain property.
On September 16, 2016, the trial court sentenced defendant to four years in prison.
On October 27, 2016, defendant filed a notice of appeal in case No. F074628 (first appeal). The trial court granted a certificate of probable cause.
On November 15, 2016, the trial court granted defendant's request to withdraw her admission of the violation of probation and the previously imposed sentence.
On December 1, 2016, the trial court heard and denied defendant's Marsden motion. After a contested hearing, the trial court found defendant in violation of probation.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). --------
On January 5, 2017, the prosecution dismissed the pending section 530.5, subdivision (a) case "in lieu of the violation of probation."
On January 18, 2017, this court dismissed defendant's first appeal as premature.
On January 19, 2017, defendant requested reinstatement of probation, but the trial court imposed the upper term of four years due to the circumstances in aggravation.
On March 20, 2017, defendant filed a second notice of appeal, arguing that she tried to obtain a different judge, attorney, and venue on the ground that the judge was biased against her because the judge was also involved in a case in which defendant's daughter was charged. The trial court granted a certificate of probable cause.
Having undertaken an examination of the entire record, we find no evidence of judicial bias, ineffective assistance of counsel, or any other arguable error that would result in a disposition more favorable to defendant. Defendant offers no support for her claim that the trial judge was biased against her. The claim was merely speculative, based on the judge's participation in a case involving defendant's daughter. The trial court considered and rejected this issue in defendant's Marsden hearing. "There is a presumption in the honesty and integrity of our judicial officers." (People v. Hernandez (1984) 160 Cal.App.3d 725, 746, citing Withrow v. Larkin (1975) 421 U.S. 35, 47.) Defendant has offered nothing to overcome that presumption and demonstrate bias, and there is nothing in the record to support defendant's assertion that the judge was biased against her.
DISPOSITION
The judgment is affirmed.
† Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.