The People v. Smith CA4/3

Filed 9/16/13 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G048116

v. (Super. Ct. No. 12CF3199)

BILLY DUANE SMITH, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent Billy Duane Smith on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court no issues were found to argue on his behalf. Pursuant to Anders v. California (1967) 386 U.S. 738, to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel provided information on two issues: (1) whether the trial court abused its discretion in revoking Smith’s probation; and (2) whether the court abused its discretion in sentencing Smith to serve out his sentence. We have reviewed the information provided by counsel, and we have independently examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed. FACTS On December 12, 2012, Smith pled guilty to receiving stolen property (Pen. Code, § 496, subd. (a)),1 a stolen laptop computer. The trial court sentenced Smith to two years in custody pursuant to section 1170, subdivision (h), with 92 days of custody credit, and placed him on mandatory supervision for 20 months and 28 days. One of the conditions of Smith’s release was that he “report to [p]robation regarding [m]andatory [s]upervised [r]elease within 72 hours of release.” On December 20, 2012, a petition for revocation of mandatory supervision was filed alleging Smith had failed to report to probation as ordered by the court. Smith was arraigned on the violation petition on January 10, 2013, and the matter was set for hearing on January 31, 2013.2 At the hearing, Smith’s counsel submitted on the matter noting “[t]he issue is not whether . . . Smith violated or not.” Counsel argued Smith