Opinion
A118391
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. ROYCE C. WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Royce C. Wilson (Wilson) appeals from a sentence imposed after he entered guilty pleas and admitted violations of his probation. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. Wilson has filed supplemental written argument. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Wilson was sentenced after his probation was revoked in two cases (CR908161 and CR908657) and he entered guilty pleas in two other cases (CR906902-B, CR910908). We first discuss the convictions underlying his probation, and then address the subsequent guilty pleas and the sentence from which he appeals.
A. May 2006 Guilty Pleas and Grant of Probation
In case number CR908161, Wilson was charged with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364) on January 20, 2006.
In case number CR908657, Wilson was charged with felony transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor driving on a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)), on March 3, 2006. It was further alleged that Wilson had been out on bail or his own recognizance at the time of the crimes (Pen. Code, § 12022.1) and that he was ineligible for probation absent unusual circumstances pursuant to Penal Code section 1203, subdivision (e)(4).
Wilson entered into a negotiated disposition of the charges in both cases on May 1, 2006. He was advised of and waived his constitutional rights. In CR908161, he pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), the court found a factual basis for the plea based on the preliminary hearing transcript, and the misdemeanor count was dismissed. In CR908657, he pled guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and he admitted that he was out on bail or his own recognizance at the time of his offense (Pen. Code, § 12022.1) and had served two prior prison commitments (Pen. Code, § 667.5, subd. (b)). The remaining counts were dismissed, and the court found a factual basis for the plea.
The court indicated, and Wilson expressed his understanding, that his maximum term on the admitted counts and enhancements was eight years eight months. Wilson waived preparation of a probation report, and he was placed on probation for three years on each case, upon various terms and conditions.
B. December 2006 Probation Revocation and Guilty Pleas
On May 4, 2006, Wilson was charged in CR906902-B with felony theft of a vehicle (Veh. Code, § 10851, subd. (a)) and felony receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a)) in October 2005. It was further alleged that Wilson had prior convictions for purposes of enhancement (Pen. Code, §§ 666.5, 667.5, subd. (b)): two prior vehicle thefts and three prior prison commitments stemming from five prior felony convictions. In addition, it was alleged that Wilson was ineligible for probation absent unusual circumstances, pursuant to Penal Code section 1203, subdivision (e)(4).
In August 2006, the probation department alleged that Wilson had violated his probation in CR908161 and CR908657 by failing to enroll in drug treatment, failing to arrange for completion of community service, and failing to complete monthly reports. Probation was summarily revoked.
In October 2006, Wilson was charged in case number CR910908 with the felony of bringing contraband into jail (Penal Code, § 4573), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364). It was further alleged that Wilson had two prior prison commitments pursuant to section 667.5, subdivision (b).
On December 15, 2006, Wilson admitted his probation violations in CR908161 and CR908657. The parties stipulated that the court could receive the probation officers report as a factual basis for the admissions.
Also on December 15, 2006, Wilson entered into a negotiated disposition to the charges in CR906902-B and CR910908. He was advised of and waived his constitutional rights. In CR906902-B, he pled guilty to one count of vehicle theft (Veh. Code, § 10851), the court found a factual basis for the plea, the remaining count and enhancements were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey), and Wilson was advised that his maximum sentence in the case would be eight months. In CR910908, he pled guilty to possession of amphetamine (Health & Saf. Code, § 11377, subd. (a)), the remaining counts and prison term enhancements were dismissed with a Harvey waiver, and counsel stipulated to a factual basis for the plea. Wilson was advised that his maximum sentence for the case would be eight months, for a total of ten years as a maximum sentence for all four cases. The court denied Wilsons request for a 12-hour pass to be interviewed by Delancey Street.
The prosecution also dismissed a fifth pending case, CR906966 outright, and the court terminated probation in a sixth case, CR 900361, without further jail time.
C. Sentencing
Sentencing in CR908161, CR908657, CR906902-B, and CR910908 began on April 6, 2007. The court denied Wilsons motion to strike his prior convictions. The court also found no unusual circumstances to justify an exception to probation ineligibility under Penal Code section 1203, subdivision (e)(4).
The court then sentenced Wilson to an aggregate nine years in state prison: the midterm of three years for the violation of Health and Safety Code section 11379, subdivision (a) in CR908657, plus two years for the "out on bail" enhancement he admitted in that case (Pen. Code, § 12022.1), plus one year for each of two prior prison commitments he admitted in the case (Pen. Code, § 667.5, subd. (b)), plus eight months for each of the three remaining counts (two violations of Health and Safety Code section 11377, subdivision (a) in CR908161 and CR910908, and one violation of Vehicle Code section 10851, subdivision (a) in CR906902-B). The court imposed consecutive sentences because the crimes were committed on separate occasions.
The sentencing hearing reconvened on May 4, 2007, to address restitution in CR906902-B and credit for time served. The owner of the vehicle that Wilson had stolen testified that she obtained repair estimates of $1,200. Although she had stated that there was nothing missing or damaged when she first saw the vehicle at 4:00 a.m. after the theft, she later noticed a crack in the windshield and damage to the speaker wiring. The court ordered Wilson to pay $400 to replace the windshield and $200 to fix the stereo system. As to credits, Wilson was granted 426 days of credit for time served.
II. DISCUSSION
Appellants counsel has represented that she served appellant on February 12, 2008, with the opening brief on appeal and advised appellant of his right to submit supplemental written argument on his own behalf within 30 days. The opening brief was filed on February 13, 2008.
On March 24, 2008, appellant filed supplemental written argument, dated March 20, 2008. Although appellants supplemental argument was untimely, we have considered the issues he raises.
Wilson complains that appellate counsel did not conduct "an adequate fact finding mission of such issues appeallant [sic] has raised to counsel in previous contacts, such as the numerous issues stated in this response." In particular, he complains that his appellate counsel reviewed only a partial record of the transcripts, and that counsel should have investigated the conduct of the prosecutor and the ineffectiveness of his trial counsel. He lists the following as issues on appeal: "1) Trial Counsel represented defendant for over 10 months and never made a single legal visit to discuss defense strategy . . . [¶] 2) Trial Counsel put defendant[]s liberty in jeopardy by giving defendant false information causing F.T.A. arrest . . . [¶] 3) Trial Counsel never investigated any evidence or witness to form a defense on defendant[]s behalf . . . [¶] 4) Trial Counsel promise [sic] to make legal visit to jail to discuss, and file appeal but never showed up and failed to to [sic] file appeal . . . [¶] 5) Trial Counsel would not make certain motions the defendant wanted brought . . . [¶] 6) Trial Counsel didnt have defendant[]s best interests at heart . . . [¶] 7) Trial Counsel never objected to consecutive sentences when he knew there is a limit on consecutive sentence which constitutes cruel and unusual punishment . . . [¶] 8) Trial Counsels ineffective waiver of constitutional rights . . . [¶] 9) Judge violating due process right when he denies motion for his own personal reasons . . . [¶] 10) Abuse of judicial discretion in proposition 36 . . . [¶] 11) Trial Counsel reapeatedly [sic] advising defendant to plead guilty. Coerced by prosecutor[]s ta[c]tics. [¶] 12) Double the base term limit — enhancement and priors. [¶] 13) Double jeopardy for crimes and enhancements." Attached to his supplemental briefing is a copy of appellate counsels application to amend or construe the notice of appeal to include all sentencing hearings.
Appellant has not provided any citations to the record in support of his arguments. Moreover, our review of the record discloses no basis for his assertions. Although appellant states that relief may be granted based on material outside the record, he does not describe what material or information outside the record would support any particular issue he has raised. In addition, to the extent he complains that his original appellate counsel did not file a notice of appeal, he suffered no prejudice because we consider now the issues he raises. To the extent he contends the court erred in the disposition he received, we conclude that his sentence does not violate his rights under Proposition 36, the double jeopardy clause, or the prohibition against cruel and unusual punishment. Nor does it reflect a prejudicial abuse of discretion.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur.
SIMONS, Acting P. J.
STEVENS, J.