IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 14, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MAURICE DARWIN YARBER, DEFENDANT AND APPELLANT.
(Santa Clara County Super. Ct. No. 185166)
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
P. v. Yarber
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was charged by information filed December 26, 1995, with inflicting corporal injury on a cohabitant within seven years of a prior conviction (former Pen. Code, § 273.55; count 1),*fn2 false imprisonment (§§ 236, 237; count 2), dissuading a witness by threat of force (§ 136.1, subd. (c)(1); count 3), and vandalism (§ 594, subds. (a) & (b)(4); count 4). The information further alleged that defendant had two prior convictions for spousal abuse (§ 273.5) within the meaning of section 1203, subdivision (e)(4).
Defendant entered into a negotiated plea agreement whereby he pleaded nolo contendere to count 1. At the change of plea hearing on February 13, 1996, the trial court specified the conditions of defendant's plea: " '[C]ounts 2, 3, and 4 will be dismissed at time of sentencing; and further, that this one count to which he will plead this morning as a felony will be reduced by me to a misdemeanor if six months from now [defendant] has . . . picked up no criminal convictions and is enrolled in, for a substantial period of time, in a domestic violence treatment program." (People v. Yarber, supra, H021382.) At the sentencing hearing on May 31, 1996, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. The trial court also ordered "that after six months from today's date has expired the charge against you will be reduced to a misdemeanor provided you are not in violation of probation and have no similar conduct, meaning you have no domestic violence case, no violence cases at all, no arrest, no pending charge. Provided all that happens, you will have your misdemeanor six months from today's date." (Ibid.)
On February 18, 1999, the probation department filed a petition to modify the terms of defendant's probation. The petition alleged five circumstances of violation: (1) defendant failed to report to the probation department on August 12, 1997; (2) defendant failed to show proof of enrollment in domestic violence counseling or attendance at the San Jose Alternatives to Violence Men's Drop-in Group; (3) defendant willfully failed to pay a restitution fine and had an outstanding balance of $200; (4) defendant committed a violation of Health and Safety Code section 11357, subdivision (b) on December 1, 1997; and (5) defendant committed a violation of section 602.5 on October 27, 1997. A supplemental memorandum from the probation department alleged two additional circumstances of violation: (1) defendant committed violations of section 148, subdivision (a), and Health and Safety Code section 11550, subdivision (a), on November 16, 1997; and (2) defendant was arrested on December 3, 1999, for outstanding warrants from another county where he was charged with violating section 273.5 (spousal abuse).
At a hearing on February 18, 2000, defendant admitted two circumstances of violating his probation: that he failed to show proof of enrollment in domestic violence counseling or attendance at the San Jose Alternatives to Violence Men's Drop-in Group, and that he willfully failed to pay a restitution fine and had an outstanding balance of $200. At the sentencing hearing on May 18, 2000, the trial court imposed the four-year middle term. Defendant did not raise any objections relating to the trial court's previous statement about reducing the offense to a misdemeanor.
Defendant appealed, contending that the trial court erred by imposing the four-year sentence because the offense should have been reduced to a misdemeanor after he successfully completed six months of probation. He argued that he was entitled to specific performance of his plea bargain because he complied with his probation for the first six months. This court affirmed the judgment finding that (1) the record on appeal did not establish that defendant actually complied with all of the terms of his probation during the first six months after sentencing,*fn3 and (2) defendant failed to comply with the procedure specified in section 17, subdivision (b)(3) for obtaining a reduction of the offense from a felony to a misdemeanor. (People v. Yarber, supra, H021382.)
On May 10, 2010, defendant filed a motion in the superior court to vacate the May 18, 2000 judgment under section 1473.6 [motion to vacate judgment by person no longer restrained on basis of newly discovered evidence]. He contended that, when the court sentenced him to prison, it did not have jurisdiction to impose a felony judgment because the prior judgment, "[on] its [own] terms, had become a misdemeanor after six months had lapsed." Attached to the motion as exhibits were documents from defendant's superior court file, including excerpts from the reporter's transcript of the 1996 sentencing hearing and the later documents filed by the probation department.
On May 27, 2010, the superior court filed its order denying defendant's motion: "This Court has received and reviewed the Motion to Vacate submitted by Mr. Yarber. The same issue contained therein has already been considered and rejected by the Sixth District in 2001 in the course of adjudicating Mr. Yarber's appeal and habeas corpus petition. (Copy of appeal H021382 in court file.) This Court is procedurally unable to revisit the matter and accordingly all requested relief or action is denied."
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief which states the case and facts but which raises no issues. Appointed counsel has provided the court with "the following issues . . . to assist the court in conducting its independent review of the record: [¶] 1. The motion to vacate should have been granted because [defendant's] felony sentence was unauthorized. [¶] 2. The motion to vacate should have been denied [sic] because [defendant] was promised the charge would be reduced to a misdemeanor after six months, and the government and the court are estopped from asserting otherwise. [¶] 3. To the extent law of the case prevents re-examining the case, the doctrine should not apply because the previous decision was clearly erroneous (see People v. Shuey (1975) 13 Cal.3d 835, 841-842) and would lead to manifest injustice (see People v. Stanley (1995) 10 Cal.4th 764, 787). [¶] 4. This court should at this time reduce the conviction to a misdemeanor because the felony sentence was unauthorized and [defendant] relied on the promise the conviction would be reduced to a misdemeanor. (See Santobello v. New York (1971) 404 U.S. 257, 262; see also Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185 [describing the doctrine of promissory estoppel].)"
We notified defendant of his right to file a written argument in his own behalf within 30 days. We subsequently granted defendant two 30-day extensions of time to file written argument. Those periods have elapsed and we have received no written argument from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The order of May 27, 2010, is affirmed.
WE CONCUR: MIHARA, J. DUFFY, J.