P. v. Pearce

Filed 10/2/07 P. v. Pearce CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

NATHAN RICHARD PEARCE,

Defendant and Appellant.

C055065

(Super. Ct. No. CM024757)

On April 4, 2006, defendant Nathan Richard Pearce was charged with receiving stolen property (Pen. Code, 496, subd. (a))^{^[1]}and misdemeanor possession of burglars tools ( 466). It was further alleged he had been convicted of two prior felonies precluding him from probation in the absence of a finding of unusual circumstances ( 1203, subd. (e)(4)) and had served two prior prison terms ( 667.5, subd. (b)). On April 20, 2006, defendant pled no contest to receiving stolen property and possession of burglars tools. The special allegations were dismissed. The court suspended imposition of sentence and placed defendant on three years of probation. On June 27, 2006, defendant filed a notice of appeal. On September 8, 2006, defendant was notified his appeal might be dismissed pursuant to California Rules of Court, rule 17(a)(1).^{^[2]} On October 13, 2006, the appeal was dismissed.

On October 25, 2006, a petition for violation of probation was filed, alleging defendant had failed to report to the probation officer as directed since September 27, 2006. On January 4, 2007, defendant admitted the probation violation. Probation was revoked pending receipt of the probation report. The court subsequently denied probation and sentenced defendant to the midterm of two years on the possession of stolen property count and a concurrent six months on the possession of burglars tools count. Defendant did not seek or obtain a certificate of probable cause.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief on July 2, 2007. In substance, he contends the probation report proves there was no actual proof a crime was committed, that in the original proceedings the court found this to be an unusual case and granted him probation, the probation report for the violation of probation was incorrect because the probation officer did not interview him as stated, he was subjected to an illegal search, and there are more circumstances in mitigation than in aggravation as to the underlying offense.

The majority of these claims go to the underlying offenses to which defendant pled guilty. By pleading guilty to the underlying offenses and admitting the probation violation, defendant has admitted the sufficiency of the evidence establishing the crime and is not entitled to a review on the merits. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Claims regarding issues following his no contest plea in April 2006 on the underlying offenses are not properly before us, as that appeal was dismissed. Defendant did not object to the February 15, 2007, probation report. Accordingly, any claims relating to errors in this report are forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234.)^{^[3]} There is no indication in the record of defendants having filed a motion to suppress prior to conviction. Accordingly, he cannot obtain review of this issue on appeal. ( 1538.5, subd. (m).) Defendant also failed to object to the sentence imposed or the reasons given for that sentence. Accordingly, that claim is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 351-354.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS, Acting P.J.

CANTIL-SAKAUYE , J.

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^{^[1]} All further statutory references are to the Penal Code.

^{^[2]} This rule has been renumbered to California Rules of Court, rule 8.220.

^{^[3]} Even if this claim were not forfeited by a failure to object, defendant wrote a letter to the court on January 9, 2007. This letter contained essentially the same information as that in the probation report under the section titled Defendants Statement. Accordingly, we fail to see any prejudice to defendant.

Description	On April 4, 2006, defendant Nathan Richard Pearce was charged with receiving stolen property (Pen. Code, 496, subd. (a))[1]and misdemeanor possession of burglars tools ( 466). It was further alleged he had been convicted of two prior felonies precluding him from probation in the absence of a finding of unusual circumstances ( 1203, subd. (e)(4)) and had served two prior prison terms ( 667.5, subd. (b)). On April 20, 2006, defendant pled no contest to receiving stolen property and possession of burglars tools. The special allegations were dismissed. The court suspended imposition of sentence and placed defendant on three years of probation. On June 27, 2006, defendant filed a notice of appeal. On September 8, 2006, defendant was notified his appeal might be dismissed pursuant to California Rules of Court, rule 17(a)(1). On October 13, 2006, the appeal was dismissed.
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