P. v. Hughing
Filed 10/2/07 P. v. Hughing CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. YURON HUGHING, Defendant and Appellant. | B198810 (Los Angeles County Super. Ct. No. BA261900) |
APPEAL from an order of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Appeal dismissed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
______________________________
Yuron Hughing appeals from a post-judgment order revoking his probation and executing a previously suspended state prison sentence. We dismiss the appeal.
In Los Angeles Superior Court case No. BA230006 Hughing was convicted on March 10, 2003 of possession or purchase for sale of cocaine base (Health & Saf. Code, 11351) and was placed on three years of formal probation.
In March 2004 in case no. BA261900 Hughing was charged by felony complaint with possession for sale of cocaine base (count 1) and selling, transporting and offering to sell cocaine base (count 2) (Health & Saf. Code, 11351.5, 11352, subd. (a)). The complaint specially alleged as to both counts that Hughing had suffered two prior convictions for selling narcotics and had served three separate prison terms for felonies (Health & Saf. Code, 11370.2; Pen. Code, 667.5, subd. (b)). Hughing waived his constitutional rights and entered a negotiated plea of no contest to count one. Pursuant to the plea agreement, the trial court sentenced Hughing to the middle term of four years for possession for sale of cocaine base, suspended execution of sentence and placed Hughing on three years of formal probation. The trial court also imposed a $200 restitution fine (Pen. Code, 1202.4, subd. (b)), a $20 court security fee (Pen. Code, 1465.8, subd. (a)(1)) and a $150 laboratory fee including penalty assessments (Health & Saf. Code, 11372.5, subd. (a)). Count 2 and the special allegations were dismissed on the Peoples motion.
At the hearing Hughing also admitted he had violated his probation in case no. BA230006. As part of the plea agreement probation in that case was revoked and reinstated, subject to modified conditions that Hughing serve 365 days in county jail, with credit for 24 days served, and that probation shall terminate upon his completion of the local custody time.[1]
On January 29, 2007 Hughing admitted he had violated his probation as a result of his arrest on September 5, 2006 for selling, transporting and offering to sell cocaine base (Health & Saf. Code, 11352, subd. (a) (case no. BA308750). The trial court revoked his probation and ordered executed his previously suspended four-year state prison sentence in case no. BA261900. Hughing was awarded 187 days of presentence credit (125 actual days and 62 days of conduct credit). The trial court also imposed a $200 restitution fine (Pen. Code, 1202.4, subd. (b)). A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45. Case no. BA308750 was dismissed on the Peoples motion.[2]
Hughing filed a notice of appeal on April 11, 2007 challenging the revocation of his probation and execution of his previously suspended sentence.[3] On April 16, 2007 the trial court granted Hughings request for a certificate of probable cause after noting the notice of appeal was untimely filed. We appointed counsel to represent Hughing on appeal.
After examination of the record counsel filed an Opening Brief in which no issues were raised. On June 29, 2007 we advised Hughing he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied Hughings attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.) However, because Hughing did not timely file his notice of appeal, it is not operative; and the appeal must be dismissed. (Cal. Rules of Court, rule 8.308(a).) Nothing in the record suggests the doctrine of constructive filing would apply in this case. (In re Chavez (2003) 30 Cal.4th 643, 657-659.)
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
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[1] The trial court also terminated probation in case no. 1CR13963, which involved a 2001 conviction for inflicting corporal punishment on a spouse or cohabitant (Pen. Code, 273.5, subd. (a)).
[2] Probation in case nos. 6MP00234 and 5MT03884 was terminated.
[3] On April 6, 2007 Hughing filed a petition for writ of habeas corpus in superior court, claiming there was insufficient evidence he violated his probation in case no. BA261900. The trial court summarily denied the petition on April 16, 2007 for failing to make a prima facie showing for relief.
