P. v. Struble
Filed 4/17/09 P. v. Struble 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JOELLE LYNN STRUBLE, Defendant and Appellant. | E046506 (Super.Ct.Nos. FWV037655 & FWV701468) OPINION |
APPEAL from the Superior Court of San Bernardino County. Douglas M. Elwell, Ingrid Adamson Uhler, Raymond C. Youngquist, and Shahla Sabet, Judges.[1] Affirmed.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PROCEDURAL BACKGROUND AND FACTS
On or about November 13, 2005, defendant Joelle Lynn Struble possessed cocaine for which she was charged by a felony complaint in People v. Joele Lynn Struble, San Bernardino County Superior Court case No. FWV 037655, with possessing cocaine (Health & Saf. Code, 11350, subd. (a)). On June 6, 2006, she pled guilty and received probation pursuant to Proposition 36 (Pen. Code, 1210.1).
On September 13, 2006, defendant admitted a drug-related violation of probation, and probation, which had been revoked, was reinstated. On October 27, defendant failed to appear, and her probation was again revoked. At the revocation hearing on November 27, defendant admitted a second drug-related probation violation, and the court reinstated probation.
On February 6, 2007, another revocation hearing was held. Defendant made a Marsden motion, which was denied. On February 20, the court suspended criminal proceedings pursuant to Penal Code section 1368 and ordered a competency examination. At a hearing on May 4, the court found defendant mentally competent and reinstated criminal proceedings. Defendant again admitted violating probation. The court found the violation to be nondrug related and terminated her Proposition 36 probation. However, it reinstated felony probation with the same conditions as the previous Proposition 36 probation, plus additional conditions requiring placement and treatment in a mental health program under the supervision of mental health court.
On May 18, 2007, defendant admitted violating probation by trespassing and leaving her mental health placement. The court reinstated probation with conditions, including 365 days jail custody.
In July 2007, defendant was charged by information in People v. Joelle Lynn Struble, San Bernardino Superior Court case No. FVW701468, with selling cocaine on or about December 21, 2006 (Health & Saf. Code, 11352, subd. (a)). On September 21, 2007, defendant pled guilty to the charged sale of cocaine, in exchange for probation in both cases under the supervision of mental health court.
On February 15, 2008, the probation department alleged that defendant violated probation by leaving her sober living home placement, failing to notify the department of her whereabouts, and failing to attend therapy appointments. On May 2, 2008, defendant admitted the alleged probation violations in both case Nos. FWV037655 and FWV701468. The court imposed the low term of three years in case No. FWV701468, and a concurrent middle term of two years in case No. FWV037655.
On June 20, 2008, within the 60-day period to appeal, defendant filed a handwritten letter to the court listing both case numbers and stating she had been told of her right to appeal within 60 days and stating her desire to come back to court and retry my case. On July 9, the court received a letter from defendant listing case No. FWV037655, stating defendants belief that her appeal was untimely, and asking for an abandonment form. The court clerk sent defendant a letter dated July 15, 2008, stating that no abandonment was needed because no appeal had been filed. On August 22, 2008, the court received a letter from defendant stating that her intent had been to abandon the appeal in case No. FWV701468, not case No. FWV037655, because she believed the appeal was untimely. The letter enclosed a purported abandonment of appeal form listing case No. FWV701468.
Apparently, a trial court clerk construed defendants June 20th letter to be a timely notice of appeal in both cases and ordered preparation of the record on August 28, 2008. Defendants June 20 letter/notice of appeal does not request a certificate of probable cause or state a basis to attack her admission of probation violations; accordingly, this appeal is limited to sentencing or other matters occurring after the plea. (Pen. Code, 1237; California Rules of Court, rule 8.304(b).)
DISCUSSION
Defendant has appealed, and at her request we appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Andersv. California (1967) 386 U.S. 738, setting forth a statement of the case, a statement of facts, potential arguable issues on appeal,[2]and requesting this court to undertake a review of the entire record.
We provided defendant with an opportunity to file a personal supplemental brief, which she has not done.
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
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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[1] Judge Sabet heard defendants motion pursuant to People v. Marsden (1970) 2 Cal.3d 118; Judge Youngquist advised defendant of her constitutional rights; Judge Uhler re-advised defendant of her constitutional rights; and Judge Elwell sentenced defendant.
[2] Defendants counsel questions: (1) whether the appeal was abandoned by defendants letter; (2) defendants possible exposure on reprosecution if the plea is set
aside; (3) whether defendant was properly advised of her constitutional rights and consequences of admitting the probation violations (Boykin v. Alabama (1969) 395 U.S. 238; Bunnell v. Superior Court (1975) 13 Cal.3d 592; In re Yurko (1974) 10 Cal.3d 857; In re Tahl (1969) 1 Cal.3d 122); and (4) whether the trial court erred in denying her Marsden motion.{AOB 8}
