P. v. Sharp CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD234009
- Trial judge
- David M. Szumowski
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Richard D. Huffman, Sr., McINTYRE
Analysis
The trial court revoked Sharp's probation for a drug possession conviction and sentenced him to 16 months in county jail. The Court of Appeal affirmed the judgment after conducting an independent review of the record and finding no arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and imposition of a 16-month county jail sentence“The trial court denied probation, citing Sharp's unsatisfactory performance on probation. (Cal. Rules of Court, rule 4.414(b)(2).) It sentenced Sharp to county jail for a term of 16 months and awarded him 242 days credit.” | de novo | not reached | agree with court The appellate court did not review the merits of the trial court's decision because the case was handled as an Anders/Wende appeal where counsel found no arguable issues. The court affirmed based on its own independent review of the record, which disclosed no reasonably arguable appellate issues. |
Authorities
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed appellate counsel to file a brief identifying no arguable issues while requesting the court to review the record for error.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the California Court of Appeal to conduct an independent review of the record in cases where counsel finds no arguable issues to ensure the defendant received effective assistance of counsel.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the established Anders/Wende protocol for handling appeals where counsel identifies no arguable issues. The court explicitly states it conducted an independent review of the record and found no reasonably arguable appellate issues, which is the required standard for affirmance in such cases.
How this analysis was made · dispute it
unusual dispositionThe trial court revoked Michael Sharp's Proposition 36 probation after he admitted possessing marijuana and drug paraphernalia, denied reinstatement of probation based on his unsatisfactory performance, and sentenced him to the low term of 16 months in county jail under Penal Code section 1170, subdivision (h), with 242 days of credit and fines of $240 (§ 1202.4, subd. (b)) and $200 (§ 1202.44). On appeal, appointed counsel filed a Wende/Anders brief raising no issues, Sharp filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation based on Sharp's admission that he possessed marijuana and drug paraphernalia after waiving an evidentiary hearing“On June 28, Sharp waived an evidentiary hearing on the probation violation allegation and admitted having possessed drug paraphernalia and marijuana.” | unclear | correct | agree with court Sharp knowingly waived the evidentiary hearing and admitted the drug violation; the court did not rely on the denied battery allegation. Nothing in the recited record suggests the admission or revocation was defective, and Wende review found no arguable issue. |
Denial of reinstatement of probation and imposition of the 16-month low term in county jail under section 1170, subdivision (h), despite the probation department's and prosecutor's recommendation to reinstate probation“The trial court denied probation, citing Sharp's unsatisfactory performance on probation. (Cal. Rules of Court, rule 4.414(b)(2).)” | unclear | correct | agree with court Whether to reinstate probation after revocation is committed to the trial court's broad discretion, and the court cited a recognized criterion (rule 4.414(b)(2)). It imposed the low term the defense itself alternatively requested and confirmed local-custody eligibility. The reviewing court did not articulate the abuse-of-discretion standard but its independent review found nothing arguable, which is consistent with the record described. |
Imposition at the revocation sentencing of a $240 restitution fine under section 1202.4, subdivision (b) and a $200 probation revocation restitution fine under section 1202.44“It imposed fines of $240 pursuant to section 1202.4, subdivision (b) and $200 pursuant to section 1202.44.” | unclear | correct (other) | unsure The opinion does not say whether a section 1202.4(b) fine was imposed when probation was granted in July 2011. Under People v. Chambers, a restitution fine imposed at the original grant of probation survives revocation and a new or different fine imposed at revocation is unauthorized; section 1202.44 also requires the revocation fine to equal the 1202.4(b) fine. The mismatch between $240 (the 2012 minimum) and $200 (the 2011 minimum) suggests the court may have imposed a new 1202.4(b) fine, which would be an arguable issue the opinion does not address. The record as recited is insufficient to resolve this. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Chambers (1998) 65 Cal.App.4th 819 — A restitution fine imposed when probation is granted survives revocation of probation; imposing a second or different restitution fine at the time probation is revoked is unauthorized.
The appellate opinion: sound with gaps — The opinion correctly applies Wende and Anders procedure, recites the facts and procedural history, confirms the defendant was invited to file a supplemental brief, and reaches a defensible result given the admitted violation and the defense's own request for a 16-month term. It does not, however, address the apparent discrepancy between the $240 section 1202.4(b) fine and the $200 section 1202.44 fine imposed at revocation, which raises a possible unauthorized-fine issue under People v. Chambers that an independent Wende review should have considered.
How this analysis was made · dispute it
record incompleteOpinion
Filed 5/14/13 P. v. Sharp CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062499
Plaintiff and Respondent, v. (Super. Ct. No. SCD234009)
MICHAEL SHARP,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David M.
Szumowski, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
Michael Sharp appeals from an order revoking his probation for a drug possession charge (Health & Saf. Code, § 11350, subd. (a)) admitted by guilty plea in July 2011, and his sentence to the low term of 16 months on probation revocation (Pen. Code, § 1237, subd. (b)).1 On appeal, Sharp's counsel has advised that examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude there are no arguable issues and affirm.
BACKGROUND
By a plea of guilty on July 11, 2011, Sharp admitted one count of violating Health and Safety Code section 11350, subdivision (a). For that offense, he was sentenced to probation and to the Proposition 36 drug court program.
On June 21, 2012, Sharp was arrested based upon his alleged involvement in a fight that had occurred June 17th. At the time of arrest, Sharp was searched and officers found a baggie containing marijuana and a glass pipe in his pants pocket.
On June 28, Sharp waived an evidentiary hearing on the probation violation allegation and admitted having possessed drug paraphernalia and marijuana. Sharp denied violating probation by committing a battery with serious bodily injury. (§ 243, subd. (d).) Probation was revoked. Sharp's counsel argued for reinstatement of probation or, alternatively, for imposition of a 16-month sentence, with Sharp housed in local custody. The prosecutor argued that given the serious nature of the battery allegations, Sharp should be sentenced to a two-year term, and that she believed he was able to be housed locally but was unsure. The court inquired as to whether battery charges had been brought. The prosecutor informed the court that a complaint had not been filed, but there 1 All further references are to the Penal Code. 2 was still time to do so; defense counsel pointed out that the jail screen indicated the district attorney had chosen not to file charges. The court continued the hearing to "track . . . down" the status of new charges, stating "that would make a difference on what I do here." The probation officer attending the hearing stated it had been checked and confirmed that Sharp was eligible to serve any sentence discussed locally (under the Criminal Justice Realignment Act of 2011). (§ 1170, subd. (h).)
Approximately three weeks later, on July 19, the probation revocation hearing resumed. Defense counsel argued for a sentence of 16 months local, and informed the court no battery charges were brought. The prosecutor confirmed that no charges were being filed, but noted in the underlying case Sharp possessed .06 grams of methamphetamine and that Sharp has a significant criminal history. The People concurred with the probation department's recommendation to reinstate a grant of formal probation pursuant to section 1203, with conditions.
The trial court denied probation, citing Sharp's unsatisfactory performance on probation. (Cal. Rules of Court, rule 4.414(b)(2).) It sentenced Sharp to county jail for a term of 16 months and awarded him 242 days credit. The court then stated "no split, no tail; delete fines, fees and costs of probation." It imposed fines of $240 pursuant to section 1202.4, subdivision (b) and $200 pursuant to section 1202.44.
DISCUSSION
As stated above, appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436.
3 Counsel mentioned no possible, but not arguable issues, pursuant to Anders, supra, 386 U.S. 738.
We granted Sharp permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to Wende and Anders, has disclosed no reasonably arguable appellate issues.
Sharp has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12