Filed 4/27/21 P. v. Hill CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

Appointed counsel for defendant Justin Derek Hill filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we find no arguable error that would result in a disposition more favorable to defendant and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 2, 2019, a Marysville police officer saw a vehicle, driven by defendant, with expired registration and attempted to conduct a traffic stop. Defendant accelerated to a high rate of speed and failed to stop at multiple stop signs. He lost control, rolling the vehicle multiple times in a field; defendant was ejected from the car. Officers observed defendant lying unresponsive and injured in the dirt, and he was handcuffed and transported for medical treatment.

Defendant was charged with recklessly evading a pursuing peace officer (Veh. Code, § 2800.2, count I) and driving while his driving privilege was suspended or revoked (Veh. Code, § 14601.1, subd. (a), count II). For count I, it was alleged that defendant had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).[1]

In December 2019, defendant pleaded no contest to count I and admitted the strike prior in exchange for dismissal of the remaining count and an opportunity to seek residential treatment rather than an initial prison sentence.[2] Under the terms of the plea agreement and Cruz waiver,[3] the parties agreed to continue sentencing to a future date to allow defendant to enroll and participate in a residential rehabilitation program lasting at least one year. If defendant successfully completed the residential rehabilitation program, then the court would strike the prior serious or violent felony and defendant would be granted probation. If defendant did not complete the rehabilitation program, he would receive the upper term of three years in state prison on count I, doubled to six years for the strike prior. Defendant would be released on his own recognizance and given one attempt to complete the program; he agreed to waive any credits for time spent in the rehabilitation center if he did not successfully complete the program.

Two months later, in February 2020, defense counsel reported that defendant was no longer enrolled in a residential rehabilitation program. At a Cruz violation hearing on May 4, 2020, the trial court found defendant violated the terms of his release agreement. A few weeks later, defendant’s public defender moved for a continuance to allow defendant to hire retained counsel. Over the prosecutor’s objection, the court granted the continuance. Sentencing was continued to June 15, 2020.

At the continued sentencing hearing, defendant was still represented by the public defender. The court sentenced defendant to six years in state prison on count I, and dismissed count II. The court imposed a $40 court operations assessment (§ 1465.8), a $30 court facilities assessment (Gov. Code, § 70373), a $4 Emergency Medical Air Transportation Act fee (Gov. Code, § 76000.10, subd. (c)(1)), a $300 restitution fine (§ 1202.4), and a $300 parole revocation restitution fine, which was suspended unless parole was revoked (§ 1202.45). He was awarded 118 days of actual credit and 118 days of conduct credit. Defendant timely appealed without a certificate of probable cause.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

RENNER, J.

[1] Further undesignated statutory references are to the Penal Code.

[2] The parties stipulated that the police report could serve as the factual basis of the plea.

[3] People v. Cruz (1988) 44 Cal.3d 1247.