Opinion
A157227
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. LEE RANDOLPH STEWART, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR231126; Sonoma County Super. Ct. No. 682068)
Defendant Lee Randolph Stewart appeals the revocation and termination of his mandatory supervision. His counsel filed an opening brief asking that this court conduct an independent review of the record for arguable issues—i.e., those that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf, but defendant declined to file such a brief. We conclude that the appeal must be dismissed because Wende protections and procedures are inapplicable to this matter, which involves post-conviction proceedings and not defendant's first appeal of right. Even if this were not the case, we would affirm the judgment because the appeal presents no meritorious issues.
I. BACKGROUND
In June 2016, defendant was charged in Sonoma County with two counts of second degree commercial burglary (Pen. Code, § 459), one count of receipt of stolen property (Pen. Code, § 496, subd. (a)), two counts of vandalism (Pen. Code, § 594, subd. (a)), and one count of possession of burglary tools (Pen. Code, § 466). The complaint also alleged five prior prison terms pursuant to section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
Defendant entered no contest pleas to the two counts of second degree commercial burglary and admitted one prior prison term from a conviction suffered in 2013, for a total agreed-upon term of four years and eight months. Pursuant to section 1170, subdivision (h), the court imposed a split sentence as follows: Defendant would serve two years in custody; the remaining two years and eight months would be suspended, during which time defendant would be supervised by the probation department on mandatory supervision.
Defendant's mandatory supervision was transferred to Solano County on September 11, 2017. On August 14, 2018, the court summarily revoked defendant's mandatory supervision based on his arrest for driving under the influence (DUI) of alcohol at speeds more than 35 miles over the posted speed limit. On September 11, 2018, defendant was convicted of driving under the influence and granted probation. After an evidentiary hearing on September 24, 2018, the court found that defendant had violated the terms of his mandatory supervision in light of his conviction in the DUI case. On October 22, 2018, the court reinstated defendant's mandatory supervision with the additional condition that he complete a substance abuse program.
On January 23, 2019, the court again summarily revoked defendant's mandatory supervision based on a January 21, 2019 DUI arrest. When he was brought to the Vallejo Police station after his arrest, defendant's blood alcohol content (BAC) was measured at 0.19 percent. After an evidentiary hearing in February 2019, the court found defendant in violation of the terms of his mandatory supervision based on this second DUI arrest. After multiple continuances, the court denied reinstatement and formally revoked defendant's mandatory supervision on April 2, 2019, ordering him to serve the remaining portion of his sentence (173 days) in custody.
II. DISCUSSION
Defendant's counsel filed a Wende brief and, pursuant to Anders v. California (1967) 386 U.S. 738, 744-745, listed the question of whether "the trial court abuse[d] its discretion by denying [defendant]'s request for reinstatement on mandatory supervision following his second arrest for driving under the influence of alcohol" as an issue that that might arguably support the appeal.
In Anders, supra, 386 U.S. at p. 744, the United States Supreme Court stated that, when requesting that a reviewing court determine whether an indigent's appeal is frivolous, counsel may file a "brief referring to anything in the record that might arguably support the appeal." A listing of issues is not constitutionally required (Smith v. Robbins (2000) 528 U.S. 259, 272-273); it is not a part of California's Wende procedure and is not necessarily helpful in a Wende appeal (People v. Garcia (2018) 24 Cal.App.5th 314, 323-325).
The Wende/Anders framework is not applicable here, as this appeal involves the trial court's post-conviction revocation of defendant's probation, not defendant's first appeal of right. The constitutional protections of Wende and Anders therefore do not apply, and the appeal must be dismissed. (People v. Serrano (2012) 211 Cal.App.4th 496, 500-501 [dismissing Wende appeal from a motion to vacate a conviction, noting that the Anders/Wende "prophylactic framework" extends to the first appeal of right in a criminal case, and no further].)
Even if the appeal were not subject to dismissal, our review of the record establishes that there are no meritorious issues to be argued. Defendant had suffered two DUI arrests within a period of a few months. His second arrest was less than two months after his mandatory supervision was reinstated with the condition that he participate in a substance abuse program, and his BAC during his second arrest was more than twice the legal limit. Moreover, the record reveals that defendant had previously been sanctioned for reporting to an appointment with the probation department while under the influence of alcohol. The court did not abuse its discretion in revoking defendant's mandatory supervision after his second DUI arrest. (People v. Catalan (2014) 228 Cal.App.4th 173, 178 [order revoking mandatory supervision reviewed for abuse of discretion].)
Nor does defendant benefit from the recent passage of Senate Bill No. 136 (Sen. Bill No. 136 (Reg. Sess. 2019-2020).) Senate Bill No. 136, which becomes effective January 1, 2020, amends section 667.5, subdivision (b) to make one-year enhancements pursuant to that statute applicable only to prior prison terms "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Sen. Bill No. 136 (Reg. Sess. 2019-2020).) Although the 2013 prior prison term that defendant admitted was not for a sexually violent offense, defendant's 2016 split sentence and the conviction on which the one-year enhancement was based became final years ago. In such circumstances, defendant is not entitled to relief under Senate Bill No. 136. (People v. Grzymski (2018) 28 Cal.App.5th 799, 802, 805-806.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.