P. v. Patel

Filed 3/27/07 P. v. Patel CA1/1

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Bharat Magan Patel appeals from a judgment following his admission of a probation violation. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (Nov. 27, 2006, S133114) __ Cal.4th__ [2006 Cal. Lexis 15095]; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

On April 19, 2005, an information was filed in Mendocino County Superior Court charging defendant in count one with identity theft (Pen. Code,  530.5, subd. (a)),[1] in count two with possession of access card account information ( 484e, subd. (d)), and in count three with grand theft ( 487, subd. (a)). On June 2, 2005, defendant pleaded guilty to grand theft for a stipulated upper term of three years with execution of sentence suspended.

A probation report was prepared, and on June 29, 2005, the court imposed the negotiated three-year upper term, but stayed execution of the sentence and placed defendant on probation for three years. The probation order set forth 24 conditions of probation including 180 days in county jail. The order also set forth that defendant shall not possess or have under your control any financial information that is not in your name, and shall not possess or have under your control any equipment used for financial transactions. Victim restitution was ordered in the amount of $5,079.30 and a court security fee of $20 under section 1465.8 was imposed.

On May 2, 2006, a petition to revoke probation was filed alleging that defendant had been in possession of financial information and processing equipment prohibited by his probation conditions. Defendant subsequently admitted the probation violation. On June 30, 2006, the court sentenced defendant to the previously imposed three-year term, with credit for time served of 273 days, and ordered a $600 restitution fine pursuant to section 1202.4, subdivision (b). A fine in the same amount was imposed, and suspended, under section 1202.45. Defendant filed a timely notice of appeal.

The facts giving rise to the underlying offense are summarized in the report of the probation officer filed June 29, 2005. On December 29, 2004, the victim contacted a law enforcement officer and stated that he noticed three, unauthorized charges to United Airlines on his credit card. He indicated that he only used this particular credit card to stay at the Best Western Hotels. The victim also told the officer that he had recently stayed at the Best Western in Willits, which was operated by the defendants sister and brother-in-law. Defendant had been the clerk who processed the victims credit card for the room charge when he stayed there. According to the victim, defendant took the victims credit card, but did not immediately swipe the card and give it back to him. Instead, defendant kept the card behind the counter until the end of the transaction.

DISCUSSION

Defendant was represented by competent counsel throughout the proceedings.

Defendant was apprised of his right to file a supplemental brief and no additional briefing has been filed.

He was properly advised of his rights and the consequences of his admission of the probation violation.

There are no sentencing errors subject to appeal. At the time of defendants original plea to the underlying offense, he stipulated to the upper term of three years with execution of the sentence suspended. When the defendant was sentenced on the probation violation, the court merely carried out the previously imposed sentence.

There are no meritorious issues to be argued on appeal.

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] All statutory references are to the Penal Code.