Filed 6/26/17 P. v. Schmidt CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

TRACY RAY SCHMIDT,

Defendant and Appellant.


G054405

(Super. Ct. No. 15WF1406)

O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County, J. Michael Beecher, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

* * *
In August 2015, Tracy Ray Schmidt pleaded guilty to several offenses, including driving under the influence of alcohol with a prior conviction, and received probation on various terms and conditions, including completion of an 18-month alcohol program. Almost a year after the convictions, Schmidt had yet to complete the alcohol program. At a hearing in October 2016 to address Schmidt’s apparent request to modify the terms of his probation, the lower court declined to relieve him of the condition, but agreed to allow him to complete a program in Oklahoma, where he intended to move. Defendant appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. Defendant did not file a supplemental brief. Our independent review of the record discloses no arguable issues. We affirm the order.
I
FACTS AND PROCEDURAL HISTORY
In July 2015, the Orange County District Attorney filed an information charging Schmidt with felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [counts 1 & 2]; all statutory references are to the Penal Code unless otherwise noted), misdemeanor driving on a suspended license (Veh. Code, § 14601.5, subd. (a)), misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and with a blood alcohol concentration (BAC) of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)) with a prior DUI conviction. The information also alleged Schmidt’s BAC was 0.15 percent or higher (Veh. Code, § 23578), and that he had suffered a prior serious felony conviction in Kansas in 1982 within the meaning of the Three Strikes law (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and section 667, subdivision (a).
In August 2015, the trial court reduced the felonies to misdemeanors (§ 17, subd. (b)) and Schmidt pleaded guilty to the reduced charges. The court placed Schmidt on probation on various terms and conditions, including a 180-day jail term and completion of an 18-month alcohol program.
On September 9, 2016, the court’s minutes reflect the court reviewed correspondence from Schmidt, modified probation to reinstate Schmidt in the alcohol program, authorized him to attend an out-of-county program, and directed proof of enrollment submitted to the court by September 30, 2016. On September 30, 2016, the court filed a notice of noncompliance. On October 13, 2016, the court set a hearing for October 20. The minutes reflect “defendant would like to address 18 month multiple offender alcohol program.”
On October 20, Schmidt appeared in court. He asserted a breath test, apparently from the underlying case, “showed a .02,” the “documentation [came] up missing in the file,” his “attorney refused to gather the information” showing the test was under the legal limit, claiming it never existed. He stated, “So I’m saying since I was denied evidence of the first test, which showed I was legally under the limit, and ineffective assistance of counsel enabled it and now that I got the evidence that there was a test that showed I was under the legal limit, I’d like to ask the Court to dismiss that case.” He also stated he was moving to Oklahoma in November where his family lived and where he had a job opportunity, and Oklahoma did not have an 18-month alcohol program.
The court stated it could not do “anything to change the charge” at the present time. The court noted Oklahoma might have something comparable to the 18-month program acceptable for probation purposes even if it did not meet the requirements to obtain a California driver’s license. The court authorized Schmidt to complete an alcohol program in Oklahoma and directed him to submit proof of enrollment by January 17, 2017. The court reminded Schmidt he was also required to complete 49 hours of community service in lieu of fines by January 17, 2017. The court directed him to report to the alcohol liaison and community service provider (OneOC) forthwith. The court advised Schmidt he could talk to a lawyer about his claims concerning the conviction or sentence.
Schmidt filed several notices of appeal. On November 16, 2016, he noticed a misdemeanor appeal stating he was appealing the conviction, as well as the October 20 order modifying the conditions of probation. He asserted the court refused “to correct [an] illegal sentence or look at evidence establishing [his] innocence” on October 20. He also asserted he advised the court on October 20 of a “USCA 6 violation” by his trial lawyer for “denying access to evidence enabling illegal conviction,” but the court “did not make a determination on ineffective assistance of counsel.” In a statement accompanying the notice of appeal, he asserted there was no substantial evidence supporting the judgment. He claimed his trial lawyer unlawfully suppressed or concealed tests showing his BAC was 0.02 percent, which resulted in his wrongful conviction and an illegal sentence. Counsel filed a felony notice of appeal on Schmidt’s behalf on December 19, 2016. The notice stated the appeal was from an “[o]rder modifying conditions of probation; court refused to correct illegal sentence or consider evidence establishing defendant’s innocence; having been informed of Sixth Amendment violation, court denied access to evidence enabling unlawful conviction and did not make determination on ineffective assistance of counsel.” Schmidt filed a notice of appeal in pro per on December 20, 2016, stating the appeal was after a contested violation of probation and “other,” which he did not specify. He requested a certificate of probable cause, and again argued his conviction and sentence were illegal.
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel’s brief and the appellate record. Appellate counsel notes he investigated several issues in conducting his review, including whether the trial court erred in denying Schmidt’s request to dismiss his drunk-driving convictions and to excuse him from completing the 18-month alcohol program, and whether Schmidt had a right to counsel with respect to his request. Our review of the entire record, including the matters identified by counsel, does not show the existence of an arguable issue. Schmidt has not availed himself of the opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues raised personally by appellant in a Wende proceeding]), nor has he requested to have appellate counsel relieved.
III
DISPOSITION
The order is affirmed.




ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.