People v. Potter CA2/5

Filed 8/5/22 P. v. Potter CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B314773
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA055588-01)
v.
GISELE MATTIE POTTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert G. Chu, Judge. Affirmed.
The Law Office of Evan D. Williams and Evan D. Williams,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Respondent.
____________________________
In 2012, defendant and appellant Gisele Mattie Potter
pleaded no contest to possession of cocaine for sale. (Health &
Saf. Code, § 11351.5.)1 Potter admitted that she suffered one
prior conviction pursuant to section 11351.5, and one prior
conviction pursuant to section 11350, subdivision (a). The
agreed-upon sentence was four years in prison, comprised of the
low term of three years for violation of section 11351.5, plus one
year for a prior conviction enhancement pursuant to Penal Code
section 667.5, subdivision (b). The trial court agreed to release
Potter on her own recognizance for two weeks to wrap up her
affairs prior to sentencing. The court advised Potter that if she
failed to return for sentencing or was discovered in possession of
a controlled substance, the court would sentence her to a term of
nine years in prison. Potter failed to appear for sentencing, and
the trial court issued a bench warrant for her arrest.
Potter was taken into custody and appeared before the trial
court on May 20, 2021. At a sentencing hearing on June 15,
2021, Potter’s counsel argued that placement in a substance
abuse program was an appropriate alternative to imprisonment.
The court sentenced Potter to the upper term of four years in
county jail.2
1 All
further statutory references are to the Health and
Safety Code unless otherwise indicated.
2 At the time that Potter pleaded guilty, a defendant
convicted of a violation of section 11351.5 could be sentenced to a
term of three, four, or five years, plus an additional year for an
enhancement under Penal Code section 667.5, subdivision (b). By
the time Potter was sentenced in 2021, the Legislature had
reduced the punishment for violation of section 11351.5 to a term
of two, three, or four years, and abolished the one-year sentence
for a prior conviction enhancement imposed pursuant to Penal
Code section 667.5, subdivision (b).
2
Potter timely appealed. The notice of appeal indicated that
the appeal was based on the sentence or other matters occurring
after the plea that did not affect the validity of the plea, and the
validity of the plea. Potter requested a certificate of probable
cause. We granted the request.
We appointed counsel. After reviewing the record, counsel
filed an opening brief asking this court to review the record
independently pursuant to People v. Wende (1979) 25 Cal.3d 436,
441 (Wende). On June 1, 2022, we advised Potter that she had 30
days to submit any contentions or issues she wished us to
consider. No response has been received to date. However,
Potter attached a five-page handwritten request for certificate of
probable cause to the notice of appeal, which we address in lieu of
a brief.
In the notice of appeal, Potter argues: Her attorney “did
nothing to represent [her]” at the 2021 sentencing hearing.
Potter did not want to be represented by appointed counsel but
was told that she had no choice, which was not true because she
had “the power to firer [sic] or hirer [sic] if I feel you are not the
one for me”. Potter believed that another appointed attorney she
had spoken with previously could negotiate a sentence of two
years.
The record does not support Potter’s complaint. At the
2021 sentencing hearing, Potter expressed no dissatisfaction with
counsel. Counsel argued, as Potter had requested, that
placement in a substance abuse program was appropriate.
Counsel stated that Potter was 65 years old at the time of the
hearing. She lost her husband to cancer in 2012, which disrupted
her life. Potter had moved to Nevada to be with family in 2012,
and had only suffered a single arrest since that time, which
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Potter claimed had been dismissed, although the disposition was
unknown. Potter suffered from a substance abuse disorder. In
light of all of these factors, Potter should be placed in a substance
abuse program as an alternative to imprisonment. The trial
court explained that it was sentencing Potter to the upper term of
four years because, although the court often gave defendants
second chances, Potter had broken the agreement that she made
with the court in 2012, and “I take those deals very seriously.”
Potter next argues in the notice of appeal: Her sentence of
four years was too harsh, and that the judge was “out to make a
point.” “[H]e was prejudice, [sic] reckless, sexist[, and had] no
respect for our laws.” The Deputy District Attorney said to the
trial court, “‘but your honor this case has ran its course 9 1/2 year
[sic]. From March 12, 2012 to May 9, 2021.’” The trial court
replied “‘he didn’t care and he was ready to sentence me. . . .’”
The Deputy District Attorney attempted to tell the trial court
that the charge had “a statute of three years.”
The record does not contain the statements that Potter
alleges the court and Deputy District Attorney made. Potter’s
assertion that section 11351.5 is not punishable by a term of
more than three years is inaccurate. The upper term of
imprisonment for a violation of section 11351.5 is four years.
(§ 11351.5.) Potter’s claim that the trial court was biased is not
supported by the record. The trial court explained that it
imposed the upper term because Potter broke her promise to the
court and failed to appear at the sentencing hearing.
Finally, Potter complained that she had not been sentenced
to a misdemeanor pursuant to Proposition 47. Proposition 47
made “certain drug- and theft-related offenses misdemeanors,
unless the offenses were committed by certain ineligible
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defendants.” (People v. Rivera (2015) 233 Cal.App.4th 1085,
1091.) However, section 11351.5, under which Potter was
convicted, is unaffected by the legislation.
We have examined the entire record. We are satisfied no
arguable issues exist and that Potter’s counsel has fully satisfied
his responsibilities under Wende. (Smith v. Robbins (2000) 528
U.S. 259, 279–284; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
We affirm the trial court’s judgment.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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