People v. Garbutt CA4/3

Filed 6/10/21 P. v. Garbutt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058867

v. (Super. Ct. No. 18WF2701)

DEONCAE GARBUTT, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey. Affirmed. Request for judicial notice granted. Michelle LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Heather M. Clark, Deputy Attorney General, for Plaintiff and Respondent.

We appointed counsel to represent Deoncae Garbutt on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following two issues: (1) whether Garbutt knowingly waived his right to a contested probation violation hearing; and (2) whether Garbutt can challenge a probation revocation on appeal without a certification of probable cause. We gave Garbutt 30 days to file written argument on his own behalf. Thirty days have passed, and Garbutt himself did not raise any specific issues. After briefing was completed, we invited the parties to file supplemental letter briefs on the following issue: should the matter be remanded to the superior court with directions to conduct a hearing and rule on Garbutt’s motion to vacate an improper probation violation sentence? Both parties filed letter briefs. Additionally, Garbutt filed 1 a request to take judicial notice, which the Attorney General did not oppose.