Filed 3/13/18 P. v. McLennan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH MCLENNAN,

Defendant and Appellant.


E068599

(Super.Ct.No. 16CR026605)

OPINION


APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Keith McLennan, in pro. per.; and Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL BACKGROUND
On June 23, 2016, defendant and appellant Keith McLennan (defendant) entered into a plea agreement and pled guilty to one count of unlawful taking of a 2008 Honda Accord in violation of Vehicle Code section 10851, subdivision (a), and admitted one prior conviction under Penal Code section 666.5 for receiving a stolen vehicle in violation of Penal Code section 496d. In exchange, defendant received a split sentence consisting of the upper term of four years, which included one year of confinement in county jail; and three years suspended during service of probation. At that time, defendant had a total of 30 custody and conduct credits.
On January 19, 2017, the probation department filed a petition to revoke probation (Petition). The Petition alleged that on January 12, 2017, defendant was observed during a police operation at a “known drug residence” in Redlands in the presence of two convicts; hypodermic needles were found. Therefore, the Petition alleged that defendant had violated three terms of his probation: (1) violate no law; (2) do not associate with convicted felons or anyone engaged in criminal activity; and (3) do not possess drug paraphernalia. On February 24, 2017, the court revoked defendant’s probation pending a hearing on the Petition. On March 9, 2017, when defendant was interviewed, he stated that he did “not know why he was arrested and had no knowledge that the other subjects were on parole or probation.”
On April 18, 2017, defendant admitted the probation violation. The trial court terminated defendant’s probation and reinstated the four-year sentence imposed earlier, three years of which had been suspended previously, for defendant’s violation of Vehicle Code section10851, subdivision (a). The court awarded a total of 557 credits, consisting of 245 actual days plus 244 conduct credits, plus 68 days of mandatory supervision. Defendant also asked for the return of $168 he claimed was booked into evidence when police detained him at the house in Redlands. The court stated that it had no such authority. After discussing credits, the trial court awarded an extra 48 days of custody credits for a total of 557 credits awarded.
On May 4, 2017, defendant filed a motion to withdraw his admission to the probation violation. He claimed that there was “good cause” because he was “misled” by his attorney “about what his probation officer was recommending,” and because his credits were calculated incorrectly.
At the hearing held on May 19, 2017, the trial court initially told defendant that it was “not inclined” to allow defendant to withdraw his admission to the probation violation. Defendant then explained that, after his admission, he discovered that the names of the other felons at the Redlands house, identified in the petition for probation revocation and the probation report, did not match the names of the felons identified in the police report of that incident on January 12, 2017. Defendant asserted that the revocation petition and the probation report, alleging that defendant associated with known felons, contained “names of people that weren’t in the house.” Defendant went on to state that “the people that they say I’m associating with in that house was [sic] not in the house. They were not in that residence when they raided it.” Defendant stated that he only admitted the probation violation on April 18, 2017, because he had not been given a copy of the police report showing that he was not arrested in the company of those two named felons until after he agreed to plead guilty.
The prosecution objected to the withdrawal of defendant’s admission to the probation violation and indicated it would revoke its consent to give defendant the extra custody credits under Penal Code section 4019 for the time defendant was released early, if defendant proceeded to withdraw his admission. The defense then requested a hearing under People v. Marsden (1970) 2 Cal.3d 118, regarding defendant’s request to replace defense counsel for allowing him to admit the probation violation without giving him the police reports and for failing to tell him that the probation report continued to recommend the supervised probation portion of his sentence, following the alleged violation. The court held the Marsden hearing in camera.
At the hearing, defendant complained that his counsel never gave him the police reports and failed to tell him that the probation report continued to recommend supervised probation. The court countered that it would not have agreed to reinstate probation regardless of any recommendation. The court also stated that it would not likely allow defendant to withdraw his admission of the probation violation and that the prosecution would withdraw its consent to allow the additional credits defendant was awarded even though released from jail early. The court then asked if defendant had “an issue” with his defense counsel because it had not “heard anything that would indicate” that defendant did. Defendant responded, “I guess I don’t.” The court then stated: “Then the Court will consider the Marsden motion withdrawn.” Defendant, who had actively participated in the hearing, did not object to his Marsden motion being withdrawn.
Following the Marsden hearing, the lower court recalculated defendant’s credits as he had requested, increasing the total to 593 days from 557 days, resulting from 239 actual days plus 238 conduct credits, plus 116 days of mandatory supervision. Defendant then agreed to withdraw his motion to withdraw his admission to the probation violation.
On June 20, 2017, defendant filed a notice of appeal.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief. Defendant filed a two-page handwritten brief with an attached Sheriff’s Department County of San Bernardino Uniform Crime Report dated March 13, 2017. In his brief, defendant requests that we allow the police report into evidence to challenge his probation violation admission.
In this case, in the notice of appeal, defendant checked that he is appealing “the sentence or other matters occurring after the plea that do not affect the validity of the plea.” Another box checked states that the “appeal is after a contested violation of probation.” Defendant, however, did not check the box that says the appeal “challenges the validity of the plea or admission.” Moreover, defendant did not request or obtain a certificate of probable cause to permit defendant to challenge the validity of his original guilty plea or his admission of probation violation, as required by Penal Code section 1237.5, and California Rules of Court, Rule 8.304(b). In the notice of appeal form, it states: “IMPORTANT: If your appeal challenges the validity of a guilty plea, a no-contest plea, or an admission of a probation violation, you must also complete the Request for Certificate of Probable Cause on page 2 of this form. (Pen. Code, § 1237.5.)” Hence, defendant’s appeal appears to be limited to the issues pertaining to the issues relating to his sentence or matters arising after his plea. Defendant’s personal brief does not address these matters. Instead, the brief addresses the police report and the inconsistencies in the report with what allegedly occurred. It appears that defendant is challenging the validity of his probation violation admission—and not his “sentence or other matters occurring after the plea that do not affect the validity of the plea” or probation violation admission. But, defendant failed to obtain a certificate of probable cause. “[S]ection 1237.5 authorizes an appeal [following an admission of probation violation] only as to a particular category of issues,” and to have these issues considered on appeal, a defendant must first take the additional procedural step of obtaining a certificate of probable cause. (In re Chavez (2003) 30 Cal.4th 643, 650.) Here, the issues raised in defendant’s supplemental brief concern the validity of his admission of his probation violation, and are therefore not cognizable on appeal. (Id. at p. 649.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


SLOUGH
J.