P. v. Cooper

Filed 5/16/07 P. v. Cooper 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Amador)

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In March 2003, defendant Susan Jeanette Cooper pleaded guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), being under the influence of methamphetamine, a misdemeanor (Health & Saf. Code, 11550, subd. (a)), and admitted a prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12, subd. (a)-(d)). Imposition of sentence was suspended and defendant was placed on five years of drug treatment probation pursuant to Proposition 36. (Pen. Code, 1210.1 et seq.)

In March 2005, defendant admitted she had violated a condition of her probation by driving under the influence (Veh. Code, 23152, subds. (a) & (b)) and being an unlicensed driver (Veh. Code, 12500).

In May 2005, the trial court imposed a sentence of four years for the methamphetamine possession conviction (midterm of two years doubled to four years because of the strike), imposed $800 in restitution fines in accordance with Penal Code sections 1202.4 and 1202.45, and credited defendant with 122 days of presentence custody credit (82 days actual custody plus 40 days of conduct credit). In September, the court modified defendants sentence by reducing the restitution fines to $100 each and changed her presentence credits to 306 days.

Facts Relating to Probation Violation

A law enforcement officer responded to the scene of a single vehicle accident where he discovered a vehicle that had left the roadway and was lying on its roof. Defendant admitted she was the vehicles driver and that she had been drinking.

A blood alcohol test administered to defendant at the scene registered .12 percent, and a second such test administered four minutes later registered .138 percent.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 of the opening brief and she has done so.

In her supplemental brief, defendant claims: (1) she has not been forwarded a copy of an amended abstract of judgment showing her having been credited with a total of 306 days of presentence custody credit, (2) her admission of violation of probation was not knowingly entered because she was unaware that driving under the influence could subject her to revocation of her Proposition 36 probation and, therefore, we should reduce her sentence, and (3) she does not understand why she now has two strike convictions on her record and requests that we strike one of them.

(1) While the record does contain an amended abstract of judgment showing reduction of the restitution fines, that amended abstract of judgment does not show the additional presentence custody credit awarded defendant. We shall remand with directions to be sure the Department of Corrections and Rehabilitation is or has been provided with the appropriate document.

(2) Defendants claim that her admission was not knowingly entered is a challenge to the validity of that admission. As such, a certificate of probable cause for the challenge is required. (Pen. Code, 1237.5.) Since defendant has not obtained the required certificate, review of the issue is not available. (People v. Mendez (1999) 19 Cal.4th 1084, 1097.)

(3) Defendant fails to state the reason for her belief that she now has two strikes. Defendants latest conviction is not a strike, and the present record shows only one strike, which is the one she admitted.

Aside from the records failure to contain an amended abstract of judgment showing defendants additional presentence custody credit, our examination of the entire record discloses no arguable error that would result in a disposition more favorable to defendant.

Disposition

The matter is remanded to the superior court with directions to prepare an amended abstract of judgment reflecting the trial courts award of 306 days of presentence custody credit and to forward a copy to the Department of Corrections and Rehabilitation. If this has already been done, defendant should be so notified. The judgment is affirmed.

HULL, J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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