IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHRIS PORTER DEFENDANT AND APPELLANT.
(San Francisco Super. Ct. No. 194488)
The opinion of the court was delivered by: Bruiniers, J.
P. v. Porter CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On March 7, 2005, appellant Chris Porter entered a plea of guilty to one felony count of making criminal threats (Pen. Code, § 422)*fn1 pursuant to a negotiated disposition. He was initially granted probation for a term of three years, with imposition of sentence suspended. Porter's probation was subsequently revoked, and on January 22, 2010, he was sentenced to an aggravated term of three years in state prison, with credit for time served of 388 days actual time and 194 days local conduct credits.
Assigned counsel has submitted a Wende *fn2 brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Porter has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.)
We find no arguable issues and therefore affirm.
Porter's conviction arose from the breakup of his relationship with a former girlfriend. On December 31, 2004, Porter was arrested after he made a series of threats to the victim (the former girlfriend) and to members of her family.*fn3 When arrested, a stolen rifle was found in the trunk of the car that he was driving.
Porter was charged by information on February 1, 2005, with one felony violation of section 646.9, subd. (a) (stalking), three felony counts of making criminal threats (§ 422), and one felony count of being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1)). It was alleged that the criminal threats charges were serious felonies within the meaning of section 1192.7, subd. (c)(38).
Pursuant to a negotiated disposition, Porter entered a plea of guilty on March 7, 2005, to one felony count of making criminal threats. He was advised of his rights on the record and waived those rights. The court found that Porter made a knowing and voluntary waiver of his rights. Counsel stipulated to a factual basis for the plea.
On April 5, 2005, Porter was placed on probation for a term of three years, with imposition of sentence suspended. Conditions of probation included participation in a domestic violence program, psychiatric counseling, that he not annoy or harass the victim, and that he obey all laws. It was stipulated that the offense was a "nonstrike."
Porter did not perform successfully on probation. He came before the court on petitions to revoke his probation on several occasions between his initial sentencing, and his ultimate incarceration on this offense on January 22, 2010. Motions to revoke probation were filed on November 10, 2005, on February 24, 2006, March 21, 2007, February 29, 2008, and December 23, 2008. A motion to revoke Porter's probation was also filed by the San Francisco District Attorney on May 19, 2009. This followed his arrest by San Francisco police on May 12, 2009, for sale and possession of marijuana for sale (Health & Saf. Code, §§ 11359, 11360, subd. (a)). Porter pled guilty to possessing marijuana for sale on July 7, 2009. Probation was summarily revoked and Porter was remanded into custody on July 14, 2009, when it was learned that a warrant had been issued for his arrest in Alameda county on a domestic violence charge (§ 243, subd. (e)(1)). It was also determined that Porter was arrested for driving with a suspended license (Veh. Code, § 14601) on July 13, 2009. The matter was set for hearing on July 29, 2009. Prior to the scheduled hearing, the probation department advised the court that Porter had been identified as the responsible person in a battery on May 30, 2009, in which he hit one woman in the face while attempting to strike another. After several continuances at Porter's request, the probation revocation hearing commenced on October 23, 2009. Porter was represented by retained counsel, and the matter was continued for further hearing at his request. Further testimony was taken on December 23, 2009. The court found by a preponderance of the evidence that Porter had violated his probation by driving on a suspended license and by commission of a battery (on May 30, 2009). Sentencing was set for January 12, 2010, but was continued to January 22, 2010. The People presented documentary evidence of Porter's prior conviction for carjacking. Porter made no objection to any evidence or argument presented by the People. The court noted Porter's consistently poor performance on probation, declined to reinstate probation, and sentenced him to the aggravated term of three years in state prison. Both counsel agreed that Porter's underlying offense made him ineligible for additional presentence custody credits under the then recently amended section 4019.
Porter filed a timely notice of appeal on February 11, 2010, under section 1237, subdivision (b).
While certifying that she found no arguable issues on her own review of the record, appellate counsel invites us to consider the following items that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744): 1) whether the trial court abused its discretion in relying in sentencing on "the first Probation Officer's report" which purportedly "relied heavily" on Porter's juvenile record; 2) whether it was prosecutorial misconduct for the prosecution to argue the circumstances of Porter's juvenile offense in sentencing in light of the stipulation that Porter's plea was to a "non-strike" offense; 3) whether the prosecution improperly argued factors not proven in court in sentencing; 4) whether Porter's trial counsel was ineffective in agreeing that his conviction under section 422 would preclude him from receiving additional presentence custody credits under section 4019. We likewise find no arguable issues raised from our review of the record.
Porter's plea was entered with the assistance and concurrence of counsel, and the court found a knowing, voluntary and intelligent waiver of his rights. There are no cognizable issues on appeal relating to the validity of Porter's plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098.) The plea further obviates any issue as to Porter's guilt of the underlying offense. "By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] '[I]ssues which merely go to the guilt or innocence of a defendant are "removed from consideration" by entry of the plea.' [Citation.]" (People v. Meyer (1986) 183 Cal.App.3d 1150, 1157.)
Porter was afforded more than adequate notice of the multiple bases for revocation of his probation and was given full opportunity, with the assistance of counsel, to contest the allegations at evidentiary hearings. "Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]" (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) " 'When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]' [Citation.]" (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) The evidence presented established that Porter failed to comply with the conditions of probation.
When a judgment of imprisonment is to be imposed, imposition of an aggravated term within the statutory sentencing triad is subject to the sound discretion of the trial court. (§ 1170; Cal. Rules of Court, rule 4.420(b); People v. Black (2007) 41 Cal.4th 799, 815.) The court considered the relevant factors in denying reinstatement of probation and imposing a state prison sentence. (See Cal. Rules of Court, rules 4.410, 4.414.) No objection was made as to any argument or evidence presented by the prosecution at the time of sentencing. Nothing in the prosecution's argument was inconsistent with the terms of Porter's plea bargain. No abuse of discretion by the court is shown.
To establish a claim of incompetence of counsel, a defendant must establish both that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92-93; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) The benchmark for judging a claim of ineffective assistance is whether the attorney's conduct "so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." (Strickland, at pp. 686, 688; see also People v. Kipp (1998) 18 Cal.4th 349, 366.) No arguable issue is presented.
As Porter's counsel acknowledged, the version of section 4019 in effect at the time of Porter's sentencing precluded award of enhanced presentence custody credits for serious felonies, which includes section 422. (§§ 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50; 1192.7, subd. (c)(38).) Custody credits were properly determined and awarded. Fines and penalties were statutorily mandated.
The judgment is affirmed.
Jones, P. J.