P. v. McCoy

Filed 6/14/06 P. v. McCoy CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Paula Adele Mabrey, Judge. Affirmed.

A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Kenneth Jay McCoy appeals from judgment entered, sentencing him to prison for 16 months, following his stipulation terminating Proposition 36 probation. (Pen. Code, § 1210.) He previously had pled no contest to one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and been placed on formal probation pursuant to Proposition 36. He, thereafter, twice failed to appear in court and provide proof of enrollment in a drug treatment program and each time probation was revoked.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On December 19, 2005, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response was received and we filed an opinion affirming the judgment of the superior court.

On March 1, 2006, this court received a letter from appellate counsel advising that appellant had been paroled from the Department of Corrections and had never received this Court's order appointing appellate counsel and never received the Wende brief or the trial court record counsel sent in December and, therefore, never had an opportunity to respond with a brief or letter to this court's letter of December 19, 2005. On March 2, 2006, this court granted appellant's request for rehearing.

On March 10, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Thereafter, appellant filed a request for an additional 90 days to submit any contentions or issues.

On April 5, 2006, we advised appellant he had 30 days to file a supplemental brief.

On April 13, 2006, this court received a letter from appellant advising the court that he had been transferred to North Kern State Prison and that he was still not receiving supplies and having difficulty accessing legal services or a law library.

On April 13, 2006, we advised appellant that he had an additional 30 days to file a supplemental brief on his own behalf. We further advised appellant that this was the final notice the court would send out to him.

On May 8, 2006, he filed in this court a petition for writ of habeas corpus in case number B190820 which was granted insofar as it requested an extension of time to file a supplemental brief in this matter and appellant was given until May 30, 2006, to file his supplemental brief. He was advised that no further extensions would be granted.

On May 25, 2006, he filed a letter claiming that part of the trial court record was missing from the appellate record. He claimed that while it had been ordered that the appellate record be augmented, the augmentation had never occurred. The record on appeal, however, includes the augmentation that was filed on October 3, 2005, a supplemental clerk's transcript with the minute orders of February 25, 2004 and March 24, 2004, and an augmented reporter's transcript of the proceedings of November 24, 2004. The record on appeal also indicates that appellate counsel served appellant with this augmentation.

On June 9, 2006, appellant filed a request to continue this case until the â€