Filed 8/25/17 P. v. Mathis CA1/3

Received for posting 8/29/17

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Joseph Mathis (appellant) appeals from a judgment entered after he pleaded guilty to second-degree burglary (Pen. Code, § 459[1]) and the trial court placed him on probation for three years. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.

Factual and Procedural Background

A consolidated information was filed on May 10, 2016, charging appellant with three counts of grand theft (§ 487, subd. (a), counts 1, 3, 5), three counts of second-degree burglary (§ 459, counts 2, 4, 6), two misdemeanor counts of petty theft (§ 490.2, subd. (a), counts 7, 9), and one count of second-degree robbery (§ 211, count 8).

The information was based on a series of thefts that occurred at a Sephora store in San Francisco. According to the probation report, “on 2/4/2016 SFPD officers responded to 2083 Union Street in San Francisco, CA for a report of theft. An employee of Sephora told officers that she saw a black male walk into the store and place an unknown number of perfume bottles into a green bag and then leave the store without attempting to pay for the merchandise. The employee said that she would recognize the man if she saw him again and that she saw the same man steal from Sephora before this incident. The manager of Sephora told police that she also saw the man steal the items and walk away without attempting to pay. Furthermore, she informed police that this same man stole from Sephora on 11/20/2015, 12/3/2015, 1/4/2016, and 1/12/2016. The manager informed police that she filed on-line police reports regarding these previous thefts. She also provided video surveillance footage from the instant offense which occurred at 4:50 PM. . . . [The video showed] the black male, later identified as defendant, walk into Sephora, place an unknown number of perfume bottles into a green bag and walk out of Sephora.”

Appellant pleaded guilty to one count of second degree burglary (§ 459, count 2). At the hearing at which appellant entered his plea, defense counsel recited the terms of the plea bargain, as follows: “Imposition of sentence will be suspended. [¶] Mr. Mathis will be placed on Adult Probation pursuant to COMPAS for a term not to exceed three years. [¶] He will be given credit for time served that will be calculated at the time of sentencing. It is approximately 17 actual days, but we will calculate that at sentencing. [¶] . . . [¶] In addition, Mr. Mathis will stay away from the people listed in the preexisting stay-away orders. [¶] In addition, Mr. Mathis will be responsible for restitution with a Harvey waiver [People v. Harvey (1979) 25 Cal.3d 754, 758–759] for all dismissed counts. [¶] Finally, Mr. Mathis will be responsible for the usual court fines and fees.” Counsel the prosecutor, “Did I miss anything?” The prosecutor responded, “That’s all.”

At sentencing, the prosecutor asked the trial court to withdraw its approval of the plea bargain on the ground that appellant’s commission of additional shoplifting offenses had come to light, including one that took place after the plea. After some discussion, the court stated it would proceed to sentence appellant in accordance with the plea bargain. Another discussion took place concerning the probation department’s recommendation of a search condition of probation. Defense counsel argued the court should not impose the condition, as “[t]he parties very explicitly negotiated this case not to include a 1035 search condition. That’s reflected in the plea transcript. . . .” The prosecutor agreed the search condition “was not contemplated in the plea,” but argued the condition would be appropriate under the circumstances. The court agreed and stated its intention to impose the condition, adding that if appellant was not agreeable to that, “then he can withdraw his plea and proceed.” After additional argument, defense counsel spoke to appellant and obtained his consent to the search condition. Counsel objected to the imposition of the condition “for the record.”

The trial court suspended imposition of sentence and placed appellant on three years of probation with various conditions including that he submit to warrantless search and seizure. The court sentenced appellant to 33 days in county jail, with 33 days of credits, and ordered him to stay away from the stores that were the sites of the offense and the Harvey-waived counts. The court imposed a $300 restitution fine (§ 1202.4), a $30 criminal conviction assessment, a $40 court security fee, a $150 pre-sentence investigation fee, and a $135 booking fee (Govt. Code, § 29550.2). It ordered appellant to pay probation costs of up to $50 per month, imposed and suspended a $300 parole revocation fine (§ 1202.45), and noted compliance with DNA testing (§ 296). It ordered appellant to pay victim restitution as determined by probation, “together with a 15 percent fee for the cost of collection.” On the prosecutor’s motion, the court dismissed the balance of the charges against appellant.

Discussion

Appellant’s counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with her responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)

Disposition

The judgment is affirmed.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.