Opinion
D059136 Super. Ct. No. SCN130105
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. ARIEL VARELA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.
In 2001, Ariel Varela entered guilty pleas to six counts of attempted receiving stolen property. (Pen. Code, §§ 664 & 496.) Varela was placed on five-years' probation on various conditions, including that he serve 365 days of local custody. Varela's probation expired on August 21, 2006.
All further statutory references are to the Penal Code unless otherwise specified.
In 2010, Varela filed a motion to vacate the judgment and to reduce the custody provision of the probation order to 364 days or fewer. By the time of the motion Varela had already served the custody required by the probation order and probation had expired.
The court found that Varela had fully complied with the terms of probation and granted Varela's request to reduce the offenses to misdemeanors and to expunge the convictions. The court, however, held it did not have jurisdiction to modify the terms of the long-expired probation order, and denied Varela's motion. (See People v. Borja (2002) 95 Cal.App.4th 481, 485-486; People v. Mendoza (2009) 171 Cal.App.4th 1142, 1149-1150.)
Varela filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Varela the opportunity to file his own brief on appeal, but he has not responded.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies a possible, but not arguable issue:
Whether the trial court had jurisdiction to modify the terms of custody in probation order where probation has expired and the defendant has already served the full custody order.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any reasonably arguable appellate issues. Competent counsel has represented Varela on this appeal.
DISPOSITION
The judgment is affirmed.
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HUFFMAN, Acting P. J.
WE CONCUR:
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AARON, J.
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IRION, J.