P. v. Burke
Filed 10/30/06 P. v. Burke CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. MARTIN BURKE, Defendant and Appellant. | A113724 (Solano County Super. Ct. Nos. FCR178562 & FCR219779) |
Defendant Martin Burke admitted to violating his probation by using methamphetamine. The trial court responded by revoking his probation and sentencing defendant to 16 months in state prison. Defendant’s counsel, having examined the record and finding no issues to raise on appeal, has asked us to review the record independently to determine whether arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable issues, we affirm the judgment.
DISCUSSION
Defendant purports to appeal from two cases wherein he had been granted probation: (1) Docket No. FCR178562, which resulted in defendant’s January 2003 no contest plea to writing checks with insufficient funds, in violation of Penal Code section 476a, as a misdemeanor[1]and (2) Docket No. FCR219779, which resulted in defendant’s March 2005 no contest plea for felony possession of methamphetamines. The last action taken on the writing checks with insufficient funds docket was the revocation and reinstatement of defendant’s probation on March 8, 2005. Defendant’s appeal, although listing both dockets, appears to relate to the revocation of probation associated with the felony methamphetamine charge, which resulted in defendant being sentenced to state prison.
On November 10, 2004, defendant was charged with possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subd. (a). Defendant, with the representation of counsel, reached a negotiated disposition by which he pleaded no contest to the methamphetamine charge.[2] Defendant was advised of, and waived, his constitutional rights, and was advised of the consequences of his plea. The court found that defendant’s plea was free and voluntary and that there was a factual basis for the plea. The trial court suspended imposition of sentence, ordered defendant to serve 180 days in jail, and sentenced him to three years probation.
Subsequently, the department of probation alleged that defendant had violated his probation by failing to perform mandated drug tests. Defendant also admitted to using methamphetamine in April 2005, in violation of his probation. A violation of probation hearing was held on January 24, 2006, and defendant agreed to admit the probation violation.[3] Defendant faced a maximum sentence of three years in state prison. The trial court properly advised defendant of the consequences of his admission and confirmed that defendant was fully informed of, and knowingly waived, his constitutional rights. On March 7, 2006, after hearing arguments from counsel, the court sentenced defendant to 16 months in state prison in accord with the negotiated disposition.[4]
There was no error in the entry of defendant’s plea, the proceedings wherein defendant was placed on probation, the revocation of probation, or the sentencing. Defendant was represented by counsel throughout the proceedings. There are no meritorious issues to be argued on appeal.
DISPOSITION
The judgment is affirmed.
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Sepulveda, J.
We concur:
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Ruvolo, P. J.
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Rivera, J.
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[1] Defendant was initially charged with a felony. A jury was unable to agree upon a verdict and the court declared a mistrial. Prior to jury selection for a second trial, the prosecutor offered to dismiss the felony charge in exchange for defendant’s plea to a misdemeanor, which defendant accepted.
[2] Defendant agreed to plead no contest; in exchange, the prosecutor agreed to: (1) dismiss an out-on-bail enhancement, (2) dismiss a robbery charge (Docket No. VCR172979), (3) promise a maximum sentence of 180 days in county jail, and (4) offer consideration for an alternative sentencing program.
[3] Defendant agreed to admit the probation violation in exchange for the prosecutor agreeing not to pursue additional probation violations arising from defendant’s alleged use of methamphetamines on December 21, 2005.
[4] Defendant, citing In re Shannon B. (1994) 22 Cal.App.4th 1235, 1240, highlights that the trial court did not ask defendant whether he had any legal cause why sentence should not be pronounced, contrary to Penal Code section 1200. The failure to make this inquiry is not reversible error. (People v. Straw (1962) 209 Cal.App.2d 565, 567 [omission of the question does not necessarily constitute prejudicial error]; People v. Sanchez (1977) 72 Cal.App.3d 356, 359 [failure to ask does not require reversal where defendant represented by counsel and no prejudice appears].) Here, defendant was represented by counsel and no prejudice appears.
