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People v. Wendahl

California Court of Appeals, Fifth District
Jul 10, 2008
No. F053888 (Cal. Ct. App. Jul. 10, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County Nos. 06CM3723 and 07CM1651, James LaPorte, Judge.

Cheryl Rae Anderson, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

THE COURT

Before Cornell, Acting P.J., Gomes, J., and Dawson, J.

In Kings County Superior Court case No. 06CM3723 (case No. 3723), it was alleged in an information filed November 14, 2006, that appellant Eric Friend Wendahl possessed marijuana for purposes of sale (Health & Saf. Code, § 11359) and had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). On March 16, 2007, appellant, pursuant to a plea agreement, pled no contest to the substantive offense and waived preparation of a presentence report, and the court placed appellant on five years’ probation.

On March 29, 2007, a “REPORT OF A VIOLATION OF PROBATION” was filed alleging appellant violated the condition of his probation that he refrain from using marijuana unless such use was approved by the superior court. On April 12, 2007, appellant admitted the allegation.

On July 17, 2007, an information was filed in Kings County Superior Court case No. 07CM1651 (case No. 1651) alleging that on April 10, 2007, appellant committed violations of Penal Code sections 12020, subdivision (a)(1) (possession of certain weapons) and 171b, subdivision (a) (bringing a knife into a public building), and Health and Safety Code section 11357, subdivision (b) (possession of 28.5 grams or less of marijuana).

On August 1, 2007, pursuant to a plea agreement, in case No. 1651, appellant pled no contest to violating Penal Code section 12020, subdivision (a)(1) and the court dismissed the remaining charges and enhancement allegations. Also on that date, in a proceeding covering both cases, the court imposed a two-year prison term in case No. 3723 and a concurrent two-year term in case No. 1651.

On October 1, 2007, appellant filed his notice of appeal, and on February 20, 2008, the court granted appellant’s request for a certificate of probable cause (Pen. Code, § 1237.5).

Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, apparently in response to this court’s invitation to submit additional briefing, has submitted a brief in which he raises various claims which we discuss below. We will affirm.

FACTUAL BACKGROUND

Case No. 3723 – Probation Violation

The report of the probation officer filed May 16, 2007, indicates the following. A probation search of appellant’s residence revealed a four-and-one-half-foot marijuana plant, two smaller marijuana plants and a “makeshift greenhouse set up for grooming and harvesting” the marijuana plants. Appellant “admit[ed] to using and cultivating marijuana for his personal use.”

Case No. 1651

The report of the probation officer filed September 11, 2007, indicates the following. Appellant appeared in Kings County Superior Court on April 10, 2007, in connection with his violation of probation, and the court remanded him into custody. A deputy sheriff took appellant into a holding cell at which point appellant, who is confined to a wheelchair, told the deputy he had a knife behind the seat cushion in his wheelchair and some marijuana in his backpack. The deputy retrieved a fixed-blade knife with a blade of five and three-quarters inches in length and a glass vile containing less than one ounce of marijuana. Appellant stated that he forgot he had the knife, and the marijuana was “for medical use, due to back pain.”

DISCUSSION

Appellant first argues, as best we can determine, that he was denied his constitutional right to the effective assistance of counsel because he had a “legal prescription for medical marijuana” and his counsel (1) represented to appellant that he would obtain “an amendment to [appellant’s] probation orders” allowing appellant to possess and use marijuana for medical purposes but failed to do so; (2) failed to place on the record a “handbook for marijuana laws” that appellant possessed, which states that a person with a “valid prescription” for marijuana who is on probation “can not be violated for possession of a marijuana plant”; and (3) permitted appellant to admit the violation even though appellant had a prescription for marijuana. However, any prescription, handbook or evidence of what appellant’s counsel told him lies outside the record on appeal. Therefore, we cannot address this claim in this appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [review on direct appeal limited to the appellate record].)

Appellant also argues, as best we can determine, that the court erred in finding him to be in violation of his probation because he had a prescription from a physician for marijuana. This contention too, because it is based on appellant’s claim that he had a prescription for marijuana, is based on a matter outside the record and is therefore not cognizable on appeal. (People v. Barnett, supra, 17 Cal.4th at p. 1183.) Moreover, by admitting the probation violation, appellant waived his claim that he did not violate probation. (People v. Billetts (1979) 89 Cal.App.3d 302, 306 [admission of probation violation forecloses appellate challenge to merits of probation violation allegation].)

Finally, it appears appellant challenges the sufficiency of the evidence supporting his conviction of violating Penal Code section 12020, subdivision (a)(1). This claim, however, is foreclosed by his plea of no contest to that offense. (People v. Marlin (2004) 124 Cal.App.4th 559, 566-567 [defendant who pleads guilty is not entitled to review on merits inasmuch as he admits sufficiency of evidence to establish crime and entry of plea forecloses consideration of issues going merely to guilt or innocence].)

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Wendahl

California Court of Appeals, Fifth District
Jul 10, 2008
No. F053888 (Cal. Ct. App. Jul. 10, 2008)
Case details for

People v. Wendahl

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC FRIEND WENDAHL, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jul 10, 2008

Citations

No. F053888 (Cal. Ct. App. Jul. 10, 2008)