Filed 9/8/17 P. v. Currey CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

David S. Currey appeals from an order that revoked his probation and imposed a prison sentence after he admitted violating the terms of his probation. His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

I. FACTS AND PROCEDURAL HISTORY

In May 2015, Currey was charged with possession of a controlled substance for sale. (Health & Saf. Code, § 11351.) The complaint further alleged, as a sentence enhancement, that Currey had previously been convicted of unlawfully transporting a controlled substance in violation of Health and Safety Code section 11352. (Health & Saf. Code, § 11370.2, subd. (a).)

Currey entered a no contest plea to the possession charge in exchange for dismissal of the prior conviction allegation and an agreement that he would receive three years of probation in lieu of prison. In September 2015, the court suspended imposition of sentence and placed Currey on probation for three years with a 90-day suspended sentence and credit for three days served. Conditions of probation included completion of residential drug treatment and regular reporting to a probation officer. The court imposed a $300 restitution fund fine pursuant to Penal Code section 1202.4, a $300 (stayed) probation revocation fine under Penal Code section 1202.44, and other fines and fees.

A. May 2016 Violation of Probation

On May 12, 2016, the probation department filed a petition alleging that Currey’s whereabouts were unknown and that he had violated his probation by failing to report in person or in writing since November 2015. The petition further alleged that Currey twice failed to appear at probation as ordered, had not remained in long-term residential treatment, and failed to provide proof of acceptance into a residential treatment program.

On July 5, 2016, the probation department filed an amended petition alleging that Currey failed to appear in court on May 19, 2016, as ordered by a mandatory appearance letter, and that he had committed a violation of Health and Safety Code section 11378 in June 2016.

At a hearing on July 13, 2016, Currey admitted that he had been arrested for possession of a controlled substance in violation of Health and Safety Code section 11377, failed to report to probation from November 2015 until his arrest in June 2016, failed to report to probation despite his probation officer’s order, and had not engaged in long-term residential treatment. The court found Currey’s admissions to be knowing, intelligent and voluntary.

On July 22, 2016, the court sentenced Currey to an additional 60 days (consecutive to the formerly-imposed 90 days) and reinstated his probation with the condition that he participate in adult drug court and be released to a residential treatment facility upon availability. He was thereafter accepted into the Salvation Army of San Francisco residential program, and arrangements were made to transport him there on August 16, 2016.

B. September 2016 Probation Violation

On September 30, 2016, the court issued a bench warrant and summarily revoked Currey’s probation on the ground that he left the residential program due to an injury without reporting to probation. The court summarily terminated him from drug court on December 2, 2016.

On January 6, 2017, the probation department filed a second petition alleging that Currey had violated his probation by being “exited” from the Salvation Army of San Francisco Adult Rehabilitation Center, failing to appear for two scheduled court appearances, and failing adult drug court.

On January 18, 2017, Currey waived his specified constitutional rights, including his right to a probation revocation hearing, and admitted the allegations of the second petition. The court found his waiver was knowing and intelligent and his admissions were made freely, voluntarily, and with knowledge of the consequences.

At sentencing, defense counsel requested a split sentence, with six to nine months to be served in custody followed by community supervision for the remainder of the three-year mid-term for the Health and Safety Code section 11351 conviction. Defense counsel argued that Currey had stopped drinking and had job skills and prospects, including long-term involvement in construction and membership in a painters’ union, and that Currey did best when working full-time.

The court observed that it had given Currey a “huge break” during the original sentencing, and “his complete unamenability to be on probation” was leading the court “toward the prison sentence.” The court found that Currey had been offered probation multiple times and had performed poorly “even on the most fundamental level of reporting,” and that his inability to comply with probation had prevented him from taking advantage of the drug court program.

The court permanently revoked Currey’s probation, sentenced him to the three-year mid-term on the underlying conviction and declined to split his sentence. The court imposed the $300 restitution fund fine and the previously-suspended probation revocation fine, as well as a $50 laboratory fund fee, a $570 drug program fund fee, a $40 security fee, and a $30 conviction assessment. The court initially granted credits of 72 actual custody days and 72 conduct days, for a total of 144 days of presentence custody credit. Upon Currey’s application, the court amended his presentence credits to 177 days.

Currey filed a notice of appeal and a request for a certificate of probable cause. The trial court denied the request for a certificate.

II. DISCUSSION

Appellant’s appellate counsel represented in the opening brief in this appeal that he advised appellant that a Wende brief would be filed and that appellant could personally file a supplemental brief within 30 days raising any issues he wanted to call to the court’s attention.

Currey thereafter filed a supplemental submission. In his submission, he states that he has accepted responsibility for his troubles, apprises us of his efforts to take care of outstanding tickets and regain his driver’s license, and asserts that he has prospective employment, re-bonded with his family, and has hopes for the future. Currey asks us for leniency, claiming the sentence was too harsh and the probation department and district attorney made it seem like he was a career drug dealer and had left the rehabilitation program on his own.

We find no arguable issues on appeal. There are no legal issues that require further briefing.

III. DISPOSITION

The order is affirmed.

NEEDHAM, J.

We concur.

SIMONS, ACTING P.J.

BRUINIERS, J.