People v. Banks CA4/2

• Court: California Court of Appeal
• Decided: December 19, 2013
• Docket: E059148
• Status: Unpublished

Opinion

Filed 12/18/13 P. v. Banks 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, E059148

v. (Super.Ct.No. RIF10005360)

PAULA JANE BANKS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.

Affirmed.

Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

In 2010, defendant and appellant Paula Jane Banks pleaded guilty to one count of

felony possession of methamphetamine. She was granted drug rehabilitation probation

under Proposition 36. In 2013, the trial court found that defendant had violated the terms

1 of her drug court probation, revoked her probation, and sentenced her to state prison.

Defendant appeals.

FACTS AND PROCEDURAL HISTORY

In August 2010, defendant was charged by a felony complaint with one count of

possession of methamphetamine, in violation of Health and Safety Code section 11377,

subdivision (a), and one misdemeanor count of possession of drug paraphernalia, in

violation of Health and Safety Code section 11364. The felony complaint alleged as

enhancements that defendant had suffered two prior prison terms for other offenses, and

did not remain free from custody for a period of five years. (Pen. Code, § 667.5,

subd. (b).)

At arraignment on the complaint, defendant agreed to enter a guilty plea to the

felony charge, and to admit one of the prison term priors; the court dismissed the

misdemeanor count in the interest of justice, and ordered the second prison term prior

stricken. The court accepted defendant’s oral statement on the record as the factual basis

for the plea. The transcript of that hearing has not been provided in the record on review.

The agreement was that defendant would be admitted to probation under Proposition 36,

including conditions that she participate in drug rehabilitation programs and testing.

Defendant’s maximum confinement exposure for the conviction was four years.

In March 2013, the People filed a notice of hearing for an alleged violation of

defendant’s probation. The petition alleged that defendant had been arrested in March

2011 for shoplifting, and she eventually pleaded guilty to petty theft with priors (Pen.

2 Code, § 666). In May 2011, a probation compliance search turned up two narcotics pipes

in defendant’s belongings at her registered address. Defendant pleaded guilty to a

misdemeanor offense of possession of drug paraphernalia and was granted drug

diversion. Defendant failed to report the matter to her probation officer.

In response to the violation of probation petition, defendant requested termination

of Riverside County’s probation jurisdiction, because she was incarcerated in San

Bernardino County on a new offense. She waived her personal presence at the revocation

proceeding.

In May 2013, the People filed a second petition for violation of probation, reciting

that defendant had been arrested in San Bernardino County for possession of

methamphetamine. At the hearing on the petitions to violate defendant’s probation, the

trial court revoked defendant’s probation, and sentenced her to the middle term of two

years on count 1, plus one year for the prison term prior, for a total determinate term of

three years, to be served in local custody in the Riverside County jail, or any penal

institution.

Defendant filed a timely notice of appeal. The notice of appeal alleged that the

ground of appeal arose from the sentence or other matters occurring after the plea that did

not affect the validity of the plea.

3 ANALYSIS

This court appointed counsel to represent defendant on appeal. Counsel has now

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. 1396, 18 L.Ed.2d 493], setting forth a statement

of the case and an abbreviated summary of the facts, but no substantive arguments.

Counsel has requested the court to undertake an independent review of the entire record.

Defendant has been offered an opportunity to file a personal supplemental brief,

which she has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th

106, we have conducted an independent review of the record and find no arguable issues.

Appointed appellate counsel did suggest that this court consider the question whether the

trial court abused its discretion in selecting the middle term of two years as the

appropriate sentence in defendant’s case. However, the trial court enjoys broad

discretion in making its sentencing choices, and these choices will be affirmed unless

there is a clear showing that the trial court’s actions were arbitrary or irrational. (People

v. Golliver (1990) 219 Cal.App.3d 1612, 1616.) In the absence of a clear showing of

error, the trial court’s selection of the middle term of two years is affirmed.

4 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

HOLLENHORST Acting P. J.

KING J.