Opinion
E077680
02-07-2022
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GOINS, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV038726. Daniel W. Detienne, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER, J.
STATEMENT OF THE CASE
On October 31, 2007, an information charged defendant and appellant Robert Goins with forcible oral copulation in concert under Penal Code section 288a, subdivision (d)(1) (count 1), and forcible sodomy in concert under section 286, subdivision (d) (count 2).
All further statutory references are to the Penal Code unless otherwise indicated.
Pursuant to the terms of a plea agreement, on November 21, 2007, the People amended the information to add a charge for unlawful sexual intercourse with a minor under section 261.5, designated as count 4, and defendant pled guilty to count 4.
On January 7, 2008, the trial court placed defendant on supervised probation for a period of three years, and ordered defendant to serve 365 days in county jail. The court then dismissed counts 1 and 2. On June 21, 2021, defendant filed a petition for expungement of his conviction under section 1203.4.
A supplemental probation report dated July 8, 2021, indicated that defendant was ineligible for relief under section 1203.4 because he had been sentenced to prison. The report also stated that, according to CLETS, defendant had been arrested several times since his release from prison, including an arrest for murder, for which he was currently in prison. The report further indicated that while defendant could conceivably seek relief under section 1203.42, relief under the statute was at the discretion of the court.
At the hearing on August 10, 2021, the deputy district attorney objected to the petition based on the supplemental probation report and because defendant was currently serving a state prison term. The deputy district attorney noted that although the probation report indicated defendant "might be eligible for 1203.42, . . . I don't believe that he is because he is currently serving time." After further discussion, the court noted, "I'm looking at Penal Code Section 1203.42(a)(3). It says, 'The relief available under the section may be granted only if the defendant is not under supervised release and is not serving a sentence for, on probation for, or charged with a commission of any offenses.' [¶] In this case, [defendant] is serving a state prison sentence. Currently housed at Mens-California Mens Colony, San Luis Obispo; for that reason, he's not eligible for the relief he's requesting and his motion is denied."
On September 7, 20201, defendant filed a timely notice of appeal.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:
(1) "Was appellant eligible for relief under section 1203.4?"
(2) "Was appellant eligible for relief under section 1203.42?"
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We are satisfied that defendant's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Id. at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The appeal is affirmed.
I concur:, RAMIREZ P. J.
MENETREZ, J., Dissenting.
Because this is an appeal from a postjudgment order, People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 do not require us to read the entire record ourselves to look for arguable grounds for reversal. (People v. Thurman (2007) 157 Cal.App.4th 36, 45; People v. Serrano (2012) 211 Cal.App.4th 496, 498.) Appointed appellate counsel filed a brief raising no issues, and defendant was given the opportunity to file a personal supplemental brief but declined. The appeal should accordingly be dismissed as abandoned. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039-1040; People v. Scott (2020) 58 Cal.App.5th 1127, 1129-1130.) Moreover, defendant is currently serving a state prison sentence. Defendant therefore is categorically ineligible for relief under Penal Code sections 1203.4 and 1203.42, so reading every page of the record to look for reversible error is pointless and benefits no one.