P. v. Phillips
Filed 8/7/13 P.
v. Phillips CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
>
THE PEOPLE, Plaintiff and Respondent, v. KRISTAL MARIE PHILLIPS, Defendant and Appellant. | 2d Crim. No. B244975 (Super. Ct. Nos. MA056166-01, MA057013-01) (Los Angeles County) |
Kristal Marie Phillips
appeals an order revoking probation in case No. MA056166-01, and a judgment
after conviction in case No. MA057013-01, after she waived her
violating probation, and pleaded nolo contendere to
appeal.
We appointed
appeal. After examination of the record,
counsel filed an opening brief raising no issues. (People
v. Wende (1979) 25 Cal.3d 436, 441.)
On June
5, 2013, we advised Phillips that she had 30
days within which to personally submit any contentions or issues that she
wished to raise on appeal. On June 26,
2013, we received a response from her contending that 1) insufficient evidence
supports the judgment and 2) the trial court abused its discretion by declining
to sentence her to a "split sentence" pursuant to section 1170,
subdivision (h)(5)(B). Pursuant to
123-124, we present a factual and procedural summary of the case and a brief
discussion of Phillips's contentions.
FACTS
AND PROCEDURAL HISTORY
On May 22, 2012,
Phillips waived her right to a preliminary hearing, waived her
plea of nolo contendere to the unlawful driving or taking of a motor
vehicle. (Veh. Code, § 10851, subd.
(a).) Phillips also admitted serving two
prior prison terms within the meaning of section 667.5, subdivision (b). Pursuant to a plea agreement, the trial court
sentenced Phillips to a five year prison term, suspended execution of sentence,
and granted Phillips five years of formal probation. (Case No. MA056166-01.)
On August 7, 2012,
the prosecutor charged Phillips with one count of second degree burglary,
involving her theft of merchandise from a store. (Case No. MA057013-01.) The prosecutor also sought to revoke
Phillips's probation in the earlier case.
On August
17, 2012, Phillips waived her right to a
preliminary examination, waived her constitutional rights, and pleaded nolo
contendere to one count of second degree burglary. She also admitted violating probation in the
prior case. Pursuant to a plea
agreement, the trial court sentenced Phillips to a two-year term to be served
concurrently with the five-year term already imposed. The court revoked probation, ordered
execution of sentence, imposed various fines and fees, and awarded Phillips 110
days presentence custody credit in case No. MA056166-01, and 78 days credit in
case No. MA57013-01.
DISCUSSION
I.
Phillips contends that
insufficient evidence supports her second degree burglary conviction.
Generally, a defendant
who pleads guilty or nolo contendere to a charge and who appeals thereafter
must obtain a certificate of probable cause.
(§ 1237.5; People
1088.) Two exceptions to the rule exist
-- search and seizure issues and postplea issues that do not affect the
validity of the plea.
probable cause and neither exception pertains to her appeal.
Moreover, Phillips entered
a negotiated plea that admits all facts of her crime, thereby relieving the
prosecution of its burden of proof
beyond a reasonable doubt. (
649.) Thus, her claim of insufficient
evidence is forfeited by her plea.
II.
Phillips also argues
that the trial court abused its discretion by denying her motion for a
split-sentence that would involve community residential drug treatment.
Section 1170,
subdivision (h)(5) provides: "The
court, when imposing a sentence pursuant to paragraph (1) or (2) of this
subdivision, may commit the defendant to county jail as follows: [¶]
(A) For a full term in custody as determined in accordance with the
applicable sentencing law. [¶] (B)(i) For a term as determined in accordance
with the applicable sentencing law, but suspend execution of a concluding
portion of the term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in accordance
with the terms, conditions, and procedures generally applicable to persons
placed on probation, for the remaining unserved portion of the sentence imposed
by the court." The trial court has
broad discretion in determining whether to impose a straight jail commitment or
a "split" or "blended" sentence pursuant to section 1170,
subdivision (h)(5)(B). (
1001, 1009.)
The trial court denied
Phillips's motion after reviewing the court files and the probation
report. The probation report discloses a
long history of drug crimes, probation violations, and prison commitments. Phillips has not established that the court
abused its sentencing discretion.
We have reviewed the
entire record and are satisfied that Phillips's attorney has fully complied
with her responsibilities and that no arguable issue exists. (People
v. Wende, supra, 25 Cal.3d 436, 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
Christopher
G. Estes, Judge
Superior Court County of Los
Angeles
______________________________
Marilyn Drath, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless stated otherwise.
