Opinion
A115617
4-19-2007
THE PEOPLE, Plaintiff and Respondent, v. HERIBERTO MACIAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Counsel appointed for defendant Heriberto Macias has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but he elected not do so. We have conducted that review, conclude there are no arguable issues, and affirm.
The transcript of the preliminary examination shows that on the afternoon of December 15, 2005, Petaluma Police Officer Frye and another officer searched defendants home pursuant to a warrant. They discovered $3,000 in cash, 84 grams of methamphetamine, scales, packaging material, and a "pay and owe sheet." While the search was being conducted, defendant came onto the scene. A search of his person revealed a cell phone and $851 in cash. After defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant admitted the materials in the house belonged to him. Accepted by the magistrate as an expert, Officer Frye gave his opinion that the methamphetamine was intended for sale.
Defendant was charged by information with possessing methamphetamine for sale, in violation of Health and Safety Code section 11378. The information also included an allegation that because the amount of the controlled substance was in excess of 28.5 grams, defendant was ineligible for probation by virtue of Penal Code section 1203.073, subdivision (b)(2).
On June 12, 2006, defendant and the prosecution agreed to a negotiated disposition, in which defendant would enter a plea of no contest to the possession charge, and the probation ineligibility allegation would be dismissed. After defendant completed a waiver and admonition form, the court accepted his change of plea. The court found that the change of plea was voluntary and intelligent, and that there was factual basis for it.
On July 20, 2006, the court dismissed the probation ineligibility allegation, and sentenced defendant to state prison for the middle term of two years. Execution of sentence was suspended, and defendant was admitted to probation upon specified conditions, one of which was that he serve nine months in the county jail. Defendant was ordered to surrender on September 2, 2006, to begin serving his jail time.
On August 14, 2006, the probation officer requested that defendants probation be summarily revoked because, three days earlier, defendant had been arrested for driving without a license, thereby violating the condition of his probation that he obey all laws. The next day the court summarily revoked defendants probation and set a formal revocation hearing.
The formal revocation hearing was held on August 29, 2006. After hearing testimony from the officer who stopped and arrested defendant, the court revoked probation. Defendants trial counsel agreed that defendant was "obviously in violation of his probation." Sentencing was set for September 27, 2006.
The main topic at the sentencing hearing was the probation officers recommendation that defendant be readmitted to probation on condition that he serve six months in the county jail. The court found this recommendation so extraordinary that the probation officer was summoned to explain it. After hearing brief argument on the recommendation, the court ordered defendant committed to state prison to begin service of the sentence previously imposed.
Defendant filed a timely notice of appeal.
Because defendant did not appeal from the order admitting him to probation, our review can take cognizance only of potential errors or issues that occurred thereafter. (People v. Senior (1995) 33 Cal.App.4th 531, 535.)
The revocation hearing complied with the due process and procedural requirements enunciated in People v. Vickers (1972) 8 Cal.3d 451. Defendant was represented at all times by counsel who ably defended his interests. The courts decision to revoke defendants probation was supported by more than substantial evidence. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.)
The order revoking probation is affirmed.
We concur:
Kline, P.J.
Haerle, J.