People v. Branch CA3 ( 2015 )

Filed 10/5/15 P. v. Branch 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C076788
Plaintiff and Respondent, (Super. Ct. No. CM039551)
v.
TRACY WAYNE BRANCH,
Defendant and Appellant.
Appointed counsel for defendant Tracy Wayne Branch asked this court to review
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal. 3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm the judgment. We provide the
following brief description of the facts and procedural history of the case. (See People v.
Kelly (2006) 40 Cal. 4th 106, 110, 124.)
1
Defendant pleaded no contest to possession of a controlled substance,
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and admitted four prior
prison term enhancements (Pen. Code, § 667.5, subd. (b)) in exchange for a referral for
sentencing pursuant to Proposition 36.1 The trial court suspended imposition of
sentencing and ordered defendant to complete three years of formal probation pursuant to
Proposition 36. Among the terms and conditions of defendant’s probation, he was
required to submit to drug testing, enroll in a substance abuse class, and attend a 12-step
program. The trial court also imposed statutory fines and fees, including a $280
restitution fine, a $280 probation revocation fine (stayed), a $195 crime lab fee (including
penalty assessment), a $25 criminal justice fee, a $250 Proposition 36 drug program fee,
a $380 Proposition 36 testing fee, a $40 court operations assessment fee, and a $30
conviction assessment.
In November 2013, it was alleged defendant violated his probation by failing to
report to his probation officer and by thrice failing to submit to drug testing. In exchange
for a dismissal of the other probation violation allegations and a dismissal of a failure to
appear charge, in January 2014 defendant admitted one violation of probation based on a
single instance of failing to submit to drug testing and executed a Harvey2 waiver. The
trial court did not reinstate probation but remanded defendant without bail and granted
1 Also known as the Substance Abuse and Crime Prevention Act of 2000, Proposition 36
provides that “ ‘a defendant who has been convicted of a “nonviolent drug possession
offense” must receive probation and diversion into a drug treatment program, and may
not be sentenced to incarceration as an additional term of probation.’ [Citation.] If the
defendant completes such drug treatment and complies with the other conditions of
probation, ‘the conviction on which the probation was based shall be set aside and the
court shall dismiss the indictment, complaint, or information against the defendant.’ ”
(People v. Alice (2007) 41 Cal. 4th 668, 680.)
2 People v. Harvey (1979) 25 Cal. 3d 754 (permitting a court to consider dismissed
charges in sentencing).
2
the probation department discretion to release defendant to a residential treatment
program on the same terms and conditions as if he were on probation.
In April 2014, it was alleged defendant violated probation by terminating his
participation in a drug rehabilitation program without permission.3 Because defendant
was still pending sentencing on the prior probation violation, this subsequent violation of
probation was dismissed on the People’s motion. The trial court terminated defendant’s
probation and imposed a sentence of six years in county jail: the middle term of two
years for possession of a controlled substance and four consecutive one-year terms for the
prior prison enhancements. The court additionally lifted the stay of the $280 probation
revocation restitution fine and ordered all previously imposed fines and fees to be paid.
Defendant appealed.4
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. (Wende, supra, 25 Cal. 3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
3 There is no indication in the record that defendant had been placed back on probation
prior to the filing of this new petition of violation of probation.
4 While his appeal was pending, defendant petitioned the trial court for recall of his
sentence and resentencing pursuant to the recently enacted Penal Code section 1170.18
(Prop. 47). The trial court granted defendant’s petition, recalling defendant’s sentence,
designating his conviction a misdemeanor, and resentencing defendant to one year in
county jail. As we recently held in People v. Scarbrough (Sept. 29, 2015, C075414)
___ Cal.App.4th ___ [2015 Cal.App. Lexis 844], the trial court’s order granting
defendant’s petition is void.
Additionally, at the hearing on his petition for resentencing, defendant orally stipulated
to dismiss the instant appeal. In light of his desire to pursue resentencing, defendant
perhaps should have abandoned the instant appeal. However, no abandonment of the
appeal was filed with this court; thus, the appeal has not been dismissed. (Cal. Rules of
Court, rule 8.316.)
3
30 days of the date of filing of the opening brief. More than 30 days have elapsed, and
we have received no communication from defendant. Having undertaken an examination
of the entire record, we find no arguable error that would result in a disposition more
favorable to defendant.
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
RENNER , J.
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