P. v. Dollins

Filed 10/10/06 P. v. Dollins CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Butte)

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In June 2004, defendant Melissa Joan Dollins pled no contest to petty theft with a prior theft-related conviction. (Pen. Code, §§ 484, subd. (a), 666; undesignated statutory references are to the Penal Code.) In exchange, counts of possession of a smoking device (Health & Saf. Code, § 11364) and possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)) were dismissed with a Harvey waiver.^[1] Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including service of 90 days of incarceration with credit for two days and payment of a $200 fine plus penalty assessments, a $10 theft fine plus penalty assessments (§ 1202.5), and a $200 restitution fine (§ 1202.4).

In March 2005, a petition was filed alleging that defendant violated her probation by testing positive for marijuana, using a controlled substance, and failing to report a law enforcement contact. Defendant admitted the allegations. Probation was reinstated with the additional condition that she serve 90 days of incarceration.

In November 2005, a petition was filed alleging that defendant violated her probation by testing positive for methamphetamine. Defendant admitted the allegation. She was sentenced to state prison for two years, awarded 115 days of custody credit and 56 days of conduct credit, and ordered to pay a $200 restitution fine (§ 1202.4), a $200 restitution fine suspended unless parole is revoked (§ 1202.45), a $35 theft fine (§ 1202.5), and a $20 court security fee (§ 1465.8).

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 raising three issues, only the last of which purports to identify an error in the judgment.

As her first issue, defendant writes: “When I went to court I was told I wasn’t trying hard enough. I totally disagree with that statement.” After recounting her considerable efforts, defendant concludes: “I just feel like I was never acknowledged for my accomplishments, because I have put alot [sic] of effort in them.”

We recognize that recovery can be a lengthy and difficult process, and we acknowledge defendant’s efforts toward that end. However, defendant does not claim that the lack of acknowledgment from the trial court provides legal justification for reversal of the judgment. No such justification appears.

Defendant’s second issue is a variant of the first. She writes: “It was stated that I have significant [sic] misdemeanor theft record, which is why I got the median term. I realize I have to be responsible for my actions. But I truly feel like I have really worked hard to change myself. I have not stolen anything since I got in trouble in 2004. I have no desire to live that life or repeat that crime ever again. I feel I should get some credit for not following that lifestyle and working hard to better my life. Rehabilitation is a struggle and is important to be acknowledged.” We have already acknowledged defendant’s efforts at rehabilitation. No legal error appears.

For her third and final issue, defendant writes: “I feel I deserve a sentence modification to the lowest term, because I have been trying my best to overcome my past and trying to do what has been ordered of me. If I had been given the time to get in a program, and my accomplishments acknowledged, I know I would have completed the program and moved on to bettering myself and my life.”

At sentencing, the trial court originally announced its intention to “consider imposition of the lower term in this case and to sentence [defendant] to state prison.” In response, the prosecutor noted that defendant “had prior misdemeanor cases,” and that the original probation report had recommended the middle term. The court then agreed that “[d]efendant did have a significant misdemeanor theft record, yes. I would consider the middle term in this case.”

“The middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Cal. Rules of Court, rule 4.420(a); references to rules are to the California Rules of Court.) Defendant’s “theft record” consists of a July 2002 conviction of petty theft (§ 488) and an April 2003 conviction of petty theft with a prior (§ 666). This record is a circumstance in aggravation and is sufficient to justify the upper term of imprisonment. (Rule 4.421(b)(2).)

When it imposed the middle term, the trial court impliedly balanced the aggravating factor of defendant’s prior record against the mitigating factor of her efforts “to overcome [her] past” and to try “to do what has been ordered of” her. Defendant effectively claims that her efforts entitle her to a further benefit, in the form of a low term sentence. However, nothing in the record suggests the court’s weighing process was improper or an abuse of discretion.

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.

SIMS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] People v. Harvey (1979) 25 Cal.3d 754.