People v. Gaines CA1/2 ( 2013 )

Filed 12/4/13 P. v. Gaines CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A139110
v.
MIQUELA LATRICE GAINES, (Solano County
Super. Ct. No. FCR251957)
Defendant and Appellant.
Following a physical altercation with a 12-year-old victim in a fast food
restaurant, Miquela Latrice Gaines pleaded no contest to counts of assault (Pen. Code,1
§ 245, subd. (a)), petty theft with a prior conviction (§§ 484, subd. (a), 666), and battery
(§ 242). The court placed Gaines on supervised probation for three years. After Gaines
admitted a second violation of her probation, the court sentenced her to three years in
state prison, with credit for 588 days. Gaines moved for modification of her sentence,
seeking additional credits. The court denied her motion and Gaines now appeals.
Gaines’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d
436 (Wende) (see Anders v. California (1967) 386 U.S. 738 (Anders)), in which he raises
no issue for appeal and asks this court for an independent review of the record. (See also
People v. Kelly (2006) 40 Cal. 4th 106, 124 (Kelly).) Counsel attests that Gaines was
advised of her right to file a supplemental brief, but she has not exercised that right.
1
Unless indicated otherwise, subsequent statutory references are to the Penal
Code.
1
We have examined the entire record in accordance with Wende. We agree with
counsel that no arguable issue exists on appeal and affirm.
I. Factual Background
The facts stated below are taken from the initial probation department sentencing
report.
An employee of a fast food restaurant stated that on January 25, 2008, he observed
Gaines and her daughter “beating up” a 12-year-old victim. The employee saw Gaines
hit the victim in the head with her fist, grab her hair, and hit her head onto the floor and
wall of the bathroom. The employee helped the victim leave the area and the victim’s
cell phone fell from her pocket. Gaines picked up the cell phone and yelled, “ ‘Bitch, you
ain’t getting no phone.’ ” A responding officer found the phone in Gaines’s pocket.
Another witness saw Gaines hit the victim in the face and body and pull her hair.
Gaines and her daughter pushed this witness when he attempted to intervene.
BACKGROUND
II. Procedural Background
On July 9, 2008, the People filed an information charging Gaines with felony
corporal injury to a child (§ 273d, subd. (a)) (count one); assault (§ 245, subd. (a)) (count
two); felony petty theft with a prior conviction (§§ 484, subd. (a), 666) (count three);
felony receiving stolen property (§ 496, subd. (a)) (count four); two counts of
misdemeanor battery (§ 242) (counts five and eight); misdemeanor participation in a riot
(§ 404, subd. (a)) (count six); and misdemeanor resisting arrest (§ 148, subd. (a)(1))
(count seven). Gaines entered a plea of not guilty on all counts.
On January 12, 2009, Gaines changed her plea to no contest on counts two, three
and five. The remaining counts were dismissed.
On March 6, 2009, following production of a probation report, the court placed
Gaines on three years of supervised probation, conditioned on serving 180 days in county
jail.
On April 20, 2009, the court referred Gaines to the alternative sentencing program
and stayed her date to report to county jail.
2
Two years later, on May 9, 2011, pursuant to a petition to revoke Gaines’s
probation because she had violated the law, the court revoked Gaines’s probation.
Gaines admitted violating her probation on May 16.
On June 13, 2011, following production of a supplemental probation report, the
court imposed a sentence of three years and eight months. The court then suspended the
sentence and re-admitted Gaines to supervised probation with 180 days to be served in
county jail immediately, with credit for 80 days.
On November 8, 2012, the court revoked Gaines’s probation, pursuant to a
petition to revoke her probation because she had again violated the law. On December 4,
Gaines admitted violating probation. On January 2, 2013, following production of a
supplemental probation report, the court imposed the previously suspended sentence of
three years and eight months, and then recalled it, pursuant to section 1170, subdivision
(d). The court reduced count three to a misdemeanor, because of a change in the law, and
imposed a sentence of three years in prison, with credit for 588 days.
On April 23, 2013, Gaines moved for modification of her sentence, seeking
additional credits. The court denied Gaines’s motion on April 29.
On June 26, 2013, Gaines filed a notice of appeal, specifying that the appeal was
based on the sentence or other matters occurring after her plea that do not affect the
validity of her plea. This notice of appeal was timely only with regard to the court’s
denial of Gaines’s motion seeking additional credits.
DISCUSSION
Gaines’s appellate counsel represents that the opening brief is filed in accordance
with Wende. The Wende court held: “We conclude that Anders requires the court to
conduct a review of the entire record whenever appointed counsel submits a brief which
raises no specific issues or describes the appeal as frivolous.” (Wende, supra, 25 Cal.3d
at p. 441.)
Gaines’s appeal was timely only with regard to the trial court’s denial of her
motion for modification of her sentence by the award of additional credits. Gaines
sought credits for the time from May 31, 2012, to November 6, 2012, the date she was
3
taken into custody in Solano County. During this period, Gaines was serving a sentence
in Sacramento County on unrelated charges. The trial court found that Gaines was not
legally entitled to credits for time served in Sacramento County . We discern no error in
that determination.
We have reviewed the record in accordance with our obligations under Wende and
Anders, and we find no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
_________________________
Brick, J.*
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
4