P. v. Poston

Filed 12/18/09 P. v. Poston CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated plea, Doreen Poston (defendant) pleaded no contest on April 13, 2009, to one count of cruelty to an animal (a cat). (Pen. Code, 597, subd. (a).) In exchange for her plea, the defendant was promised probation on the condition she be released to PALS, a mental health treatment program; and after one year of doing well in mental health treatment court she could apply to the court to have her conviction reduced to a misdemeanor.

On May 5, 2009, the court suspended imposition of sentence and placed defendant on formal probation for three years. Thereafter, on June 8, 2009, defendant filed a notice of appeal challenging events based on the sentence or matters occurring after the plea.

We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues.

On September 28, 2009, we notified defendant of her right to submit written argument on her own behalf within 30 days. To date, we have not received a response from defendant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the . . . procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)

Facts

There was no evidentiary hearing in this case. Further, defendant waived referral to the probation department. Accordingly, the facts of defendant's underlying case are unknown.

Procedural History

On November 13, 2008, the Santa Clara County District Attorney filed an information in which defendant was charged with one count of cruelty to an animal. (Pen. Code, 597, subd. (a).)

On April 13, 2009, defense counsel outlined the plea agreement set forth ante.

Before taking defendant's plea, the court advised defendant of her privilege against self-incrimination, her right to confront her accusers and her right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 (89 S.Ct. 1709), and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. Defendant was advised that the maximum potential sentence for the charge to which she would be entering a plea was three years; that she would be placed on probation for three years; that if she violated her probation she could be sent to state prison and would be subject to a three-year period of parole when released. The court advised defendant of the possible immigration consequences of her plea; and that there were other consequences of her plea, including that she would have to pay a restitution fund fine and other fines and fees. Counsel stipulated that the police report contained a factual basis for the plea. The court found that defendant "knowingly, voluntarily, intelligently and with understanding" entered her plea.

The Sentencing Hearing

As noted, the court suspended imposition of sentence and placed defendant on three years formal probation. Defendant was ordered to pay certain fines including a $200 restitution fund fine plus penalty assessment (Pen. Code, 1202.4). The court imposed, but suspended a probation revocation fee in the same amount (Pen. Code, 1202.44).[1] The court imposed other conditions of probation including that defendant enter and successfully complete a psychological treatment program.

Our review of the entire record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] The amount of the restitution fund fine and the probation revocation fund fine with a penalty assessment totaled $220 each. Defendant was referred to the Department of Revenue for a determination of her ability to pay.