People v. Szymulewski CA3

Filed 4/24/14 P. v. Szymulewski CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C075012

Plaintiff and Respondent, (Super. Ct. No. CRF12265)

v.

FRANK JOSEPH SZYMULEWSKI,

Defendant and Appellant.

Appointed counsel for defendant Frank Joseph Szymulewski 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.

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BACKGROUND

On January 31, 2013, defendant pled no contest to one count of possession of heroin and was placed on Proposition 36 drug treatment probation.1 On May 30, 2013, defendant admitted violating terms of his probation. On August 22, 2013, the parties agreed that defendant would opt out of his Proposition 36 drug treatment and would be sentenced to two years for the possession of heroin conviction, with that term to run concurrent with a “four-year split sentence” he was then serving in Sutter County, i.e., two years in jail followed by two years on supervised probation. Defendant’s counsel also represented to the court that defendant had been told by Sutter County that his two-year jail term “could be modified into a program,” which defendant understood would permit him to be released from jail at “roughly the same time” in both the present and Sutter County case. On October 15, 2013, the matter came on for sentencing. Defense counsel argued that defendant had miscalculated his Sutter County release date, which was earlier than he believed it would be, and defendant was hoping that the court and the prosecutor would agree to shorten his county jail time in the present case. The court declined to do so and sentenced defendant to two years, that term to run concurrently with the term defendant was then serving in Sutter County. The court credited defendant with 156 days of presentence custody credit and imposed fines and fees as set forth in detail in the abstract of judgment.