P. v. Alvelais

 

 

 

Filed 12/20/13  P.
v. Alvelais CA3

 

 

 

NOT TO BE PUBLISHED

 

 

 

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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Butte)

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THE PEOPLE,                           Plaintiff and Respondent,               v.   MADELEINE MARIA ALVELAIS,                           Defendant and Appellant.

C074196   (Super. Ct. Nos. CM033237, CM033374 & CM037679)

 

 

 

 

            Appointed counsel for defendant
Madeleine Maria Alvelais asked this court to review the record and determine
whether there are any arguable issues on appeal.  (People
v. Wende (1979) 25 Cal.3d 436 (Wende).)  Finding no arguable error that would result
in a disposition more favorable to
defendant, we will affirm the judgment.

BACKGROUND

            Because both of defendant’s cases
were resolved by plea, the facts are taken from the probation officer’s report.

            Brian Vittitoe left his residence on
October 24, 2010, and did not lock his front
door.  When he returned home, nothing
seemed amiss but he later discovered that $650 in cash and a bottle of medicine
were missing. 

            On November
3, 2010,
officers executed a search warrant at
defendant’s residence and found, among other things, Vittitoe’s driver’s license.  Vittitoe told an officer that he did not know
defendant and defendant did not have permission to have his license.  Defendant was booked into jail and later released
on her own recognizance. 

            Two years later, on November
5, 2012,
Karen Maloney reported a residential burglary. 
She was employed by the homeowner who was away on a business trip.  While working in her office at the home,
Maloney saw a woman run into a bedroom. 
Maloney confronted the woman, who claimed she was looking for her
walking partner.  But when a male
contractor approached the front door, Maloney opened the door for him.  The woman fled out the door, entered a car
parked near the garage and drove away. 
Maloney recorded the license plate number.  A records check showed that the car was
registered to defendant, and Maloney identified defendant from a
photograph. 

            Defendant’s nearby apartment was
placed under surveillance.  After she drove
away in a vehicle matching the description given by Maloney, officers conducted
a traffic stop of defendant.  Maloney
went to the scene of the traffic stop and identified defendant as the person
who had been in her employer’s residence. 
Several items of stolen property were recovered. 

            In case No. CM033237 (the 2010
case), defendant pleaded guilty to first degree burglary.  (Pen. Code, §§ 459, 460, subd. (a).)href="#_ftn1" name="_ftnref1" title="">[1] 
In exchange, two counts of receiving stolen property (§ 496, subd.
(a)) were dismissed with a Harvey waiver.href="#_ftn2" name="_ftnref2" title="">[2] 


            In case No. CM037679 (the 2012 case),
defendant pleaded guilty to first degree burglary and admitted that a person
other than an accomplice was present during the commission of the
burglary.  (§§ 459, 460, subd. (a),
667.5, subd. (c)(21).)  In exchange, six
counts of receiving stolen property and an on-href="http://www.fearnotlaw.com/">bail allegation (§ 12022.1) were
dismissed with a Harvey waiver. 

            The href="http://www.mcmillanlaw.us/">trial court sentenced defendant to five
years four months in prison.  In the 2010
case, the trial court awarded defendant three days of custody credit and no
conduct credit, and ordered her to pay a $280 restitution fine (§ 1202.4),
a $280 parole revocation fine (§ 1202.45), an $850 penal fine (§ 672)
including penalty assessments, a $40 court operations fee (§ 1465.8, subd.
(a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $39
theft fine (§ 1202.5) including penalty assessments. 

            In the 2012 case, the trial court
awarded defendant 209 days of custody credit and 31 days of conduct credit, and
ordered her to pay a $1,100 restitution fine (§ 1202.4), a $1,100 parole
revocation fine (§ 1202.45), an $850 penal fine (§ 672) including
penalty assessments, a $40 court operations fee (§ 1465.8, subd. (a)(1)),
a $30 court facilities
assessment (Gov. Code, § 70373), and a $39 theft fine (§ 1202.5)
including penalty assessments. 

            The trial court also ordered defendant
to pay a $736 presentence investigation report fee.  (§ 1203.1b.) 

DISCUSSION

            Appointed counsel filed an opening
brief setting forth the facts of the case and asking this court to review the
record and determine whether there are any arguable issues on appeal.  (Wende,
supra, 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 the opening brief. 

            Defendant filed a supplemental brief
contending her “constitutional rights were violated” because she was not
provided her “legal right to an impartial and unbiased sentencing judge.”  She claims the sentencing judge, Tamara
Mosbarger, “was biased by her feelings regarding [defendant’s] 2007-2008 family
law case that she presided over.  Even
though this family law case was dismissed, with no fault found on [defendant’s]
part, Judge Mosbarger still used untrue and unsubstantiated details of that
case for justification of [defendant’s] criminal court sentencing.  Judge Mosbarger recalled and stated her
feelings about that 2007-2008 family law case as part of her justification for
sentencing [defendant] to a mid-term prison sentence.” 

            Specifically, defendant claims Judge
Mosbarger made “reference to a Dr. Kirk Casey. 
Kirk Casey had no part in [defendant’s] criminal case only in
[defendant’s] dismissed 2007 family law case. 
Judge Mosbarger states that she had told [defendant] previously to stop
using drugs with Dr. Casey and that [defendant] had been previously
warned.” 

            Defendant concedes that her sentence
was within the scope of the plea negotiation but claims it was “handed down
with the judge’s own bias and negative feelings surrounding that family law
case which had nothing to do with [defendant’s] criminal case sentencing.”  Defendant adds that, following the 2007
family law case, she had recused Judge Mosbarger from a subsequent family law
matter but her trial counsel did not seek to remove the judge from the present
proceeding. 

            The sentencing transcript does not
support defendant’s contention.  The
trial court stated in relevant part: 
“[L]ooking at this as two and a half years of this going on, and
[defendant’s] DUI [driving while under the influence] was in 2007.  And that was, if I recall, a rollover
accident on the Skyway where her car rolled several times.  And she was lucky that she walked away from
that and didn’t take anyone with her. 
And I believe she said she was on the way to pick up her son from
daycare at the time the police talked to her. 
[¶]  I know that we talked
together about my concerns about your drug and alcohol abuse addiction, your
prescription drug addiction with your ex-husband present, about the numerous
drugs that you were taking and that that was a concern to me.  [¶] 
You have been to Chico Recovery Center. 
You have been to AA [Alcoholics Anonymous] where you admit meeting Dr.
Casey who you began continuing to use prescription drugs with.  You’ve had DUI classes.  You’ve had the advantage of being given
probation in your DUI class and you have not taken advantage of any of those
services.” 

            The trial court then found that
defendant was eligible for probation only in an unusual case; found this case
was not unusual; denied probation in any event due to criminal sophistication
and poor performance on probation; found that circumstances in aggravation do
not outweigh circumstances in mitigation; and imposed the middle term of
imprisonment. 

            Nothing in this record suggests the
trial court was biased against defendant based upon the 2007 family law
case.  Defendant has not identified any
of the court’s remarks as containing “untrue and unsubstantiated details” of that
prior case.  The court’s remark, “we
talked together about my concerns about your drug and alcohol abuse addiction,
your prescription drug addiction with your ex-husband present,” appears to
refer to the 2007 matter.  But the
reference is to defendant’s ex-husband, not Dr. Casey, and the mere fact of prior
discussion does not suggest that the trial court harbored bias against
defendant.

            The trial court’s only reference to
Dr. Casey was the statement:  “You have
been to AA where you admit meeting Dr. Casey who you began continuing to
use prescription drugs with.”  But
defendant admitted as much in the present case; the trial court did not rely
impermissibly on its recollection of the 2007 case.

            In her interview with the probation
department, “defendant stated not only was her criminal history accurate but it
began in conjunction with the height of her substance abuse.  Her alcohol abuse and abuse of her
prescription medications played a part in her separation with her second husband.  Her substance abuse increased during the
separation and divorce; she ended up driving under the influence.  While attending 12-step meetings she met a
physician, who would later become her fiancé. 
She, and her fiancé, continued to abuse medications.  In 2010, their relationship ‘fell
apart.’  She took the end of the
relationship particularly hard and she turned to the medications to ‘numb’
herself.  She obtained prescriptions from
numerous doctors within the community.” 

            Thus, in her statement to the
probation department, defendant acknowledged the facts regarding Dr. Casey that
the trial court discussed at sentencing. 
Further details of defendant’s relationship with Dr. Casey appear in a
letter to the sentencing court from defendant’s mother, Lynne W. Lamprecht.  Any judge conducting the sentencing
proceeding would have been aware of these facts from the probation report.  The record does not show that the trial court
relied on its recollection of Dr. Casey from the prior case or that it harbored
any bias against defendant.  There was no
error.

            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.

 

 

 

                                                                                                         MAURO                         , J.

 

 

We concur:

 

 

                       HULL                         , Acting P. J.

 

 

                       DUARTE                    , J.