P. v. Hilton

Filed 8/29/08 P. v. Hilton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant pled guilty and was placed on probation on September 26, 2003. In 2006, defendant was found in violation of probation for failing to pay his restitution fine payment.^[1] (Pen. Code, 1202.4, subd. (b).)^[2] In 2007, defendant filed separate notices of appeal from (a) a purported order relating to the violation of probation entered on July 26, 2006, and (b) the underlying guilty plea entered in 2003. Because the appeals are untimely, we affirm.

BACKGROUND

On September 26, 2003, defendant pled guilty to a charge of unlawful possession of ammunition by a person prohibited from possessing a firearm. (Pen. Code, 12316, subd. (b)(1), 667.5, subd. (b).) That same day, he was placed on formal probation.

On July 21, 2006, an allegation of violation of probation was filed. On July 26, 2006, the court vacated a hearing which had been set to reinstate the condition permitting defendant to serve his jail term on weekends. A notice of appeal from this order was signed by defendant on November 19, 2006, but was not received by the superior court until November 19, 2007, more than a year later. On December 21, 2007, the superior court received defendants notice of appeal from the underlying guilty plea, more than four years after the plea was entered and judgment was pronounced.

DISCUSSION

At his request, this court appointed counsel to represent defendant on appeal. 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 [87 S.Ct. 1386, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

An order granting probation is an appealable order. ( 1237, subd. (a).) An order revoking or modifying probation is also appealable as an order after judgment. (In re Bine (1957) 47 Cal.2d 814, 817.) However, the notices of appeal filed in this case, as well as the defendants request for a certificate of probable cause, were not filed within 60 days of the judgment or order challenged. The appeals are inoperative. (Cal. Rules of Court, rule 8.308(a); People v. Mendez (1999) 19 Cal.App.4th 1084, 1095.)

We have completed our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

GAUT

J.

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^[1] Defendant has requested that we take judicial notice of certain minute orders and that request is granted. We take judicial notice of the entire superior court file in this matter for the complete history of the case. (Evid. Code, 452, subd. (d), 459.)

^[2] Unless otherwise noted, all statutory references are to the Penal Code.