Filed 10/20/17 P. v. Singleton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Richard Charles Singleton, Jr., was charged by felony complaint with one count of acquiring the personal identifying information of another person, having been previously convicted of the same violation (Pen. Code, § 530.5, subd. (c)(2), count 1)[1] and forgery (§ 475, subd. (a), count 2). The complaint also alleged that defendant was convicted of prior felonies, which made him ineligible for probation within the meaning of section 1203, subdivision (e)(4). The complaint further alleged that defendant had served one prior prison term. (§ 667.5, subd. (b).) Pursuant to a plea agreement, defendant pled guilty to count 1 and admitted the prison prior. The court dismissed count 2 in the interests of justice. It then imposed the midterm of two years on count 1, plus a consecutive one year on the prison prior. The court suspended the execution of the sentence as to two years of the term and ordered defendant placed on mandatory supervision, under specified conditions. (§ 1170, subd. (h)(5)(B).) The probation department subsequently alleged that defendant violated the terms of his mandatory supervision. The court revoked the mandatory supervision and issued a bench warrant.

Defendant filed a timely notice of appeal based on the sentence or other matters occurring after the plea. We affirm.

PROCEDURAL BACKGROUND

On October 6, 2015, defendant pled guilty to one count of acquiring the personal identifying information of another person, having been previously convicted of the same violation (§ 530.5, subd. (c)(2), count 1) and admitted the prison prior. The court ordered him to serve a total of three years in county jail, but suspended the execution of two years of the term. It thus ordered that defendant serve one year in county jail and then be placed on mandatory supervision, under specified conditions, upon his release from custody.

Defendant was released from jail on February 4, 2016, and began his period of mandatory supervision.

On May 27, 2016, the probation department filed a petition alleging that defendant violated the following terms of his mandatory supervision: (1) inform the probation officer of his place of residence and reside at a residence approved by the probation officer; (2) give written notice before changing his residence and not move without the approval of the probation officer; and (3) report to the probation officer immediately or within two days of release from custody for initial instructions. The petition alleged that defendant had only served 92 days of his mandatory supervision sentence. The probation department recommended that a bench warrant be issued and upon apprehension, defendant be ordered to serve 60 days in custody.

On December 1, 2016, the district attorney received from defendant an in propria persona “Motion to Dismiss for Failure to Comply with Demand for Trial.” Defendant alleged that, on November 29, 2016, he served on the district attorney a demand letter for trial, pursuant to section 1381. However, over 90 days had elapsed and the district attorney had failed to respond to the letter.

On January 24, 2017, the district attorney’s office filed a memorandum stating that it had received a demand for trial under sections 1381/1381.5 and a motion to dismiss from defendant. The People recommended that there be no dismissal, since section 1381 did not apply to violations of mandatory supervision. The court held an ex parte hearing and approved the memorandum. Thus, it denied defendant’s request for trial and stated that the bench warrant remained outstanding.

On February 27, 2017, the public defender’s office filed a motion for modification of mandatory supervision on behalf of defendant. The motion alleged that defendant was currently incarcerated in county jail on another conviction in San Bernardino County. It further alleged that defendant would waive his right to be personally present and admit that he committed a new law violation and the three probation violations alleged by the probation department, if the court would order that he serve the 60-day sanction for the violations concurrent with the time he was serving on his San Bernardino commitment.

The court held a hearing on March 17, 2017. The People recommended that the court not give defendant concurrent time, and that if he wanted to fight the probation violation allegations, they should proceed with a violation of probation hearing and run the time consecutive. The court denied defendant’s motion for modification of mandatory supervision and ordered that the warrant remain in place.

Defendant filed a notice of appeal on April 13, 2017.

ANALYSIS

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 and the following potential arguable issues: (1) whether the court’s order denying defendant’s request to modify the terms of his mandatory supervision is an appealable order; and (2) whether the court improperly failed to exercise its discretion when it refused to consider defendant’s conditional admission that he violated the terms of his mandatory supervision.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We have now concluded our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.