People v. Melger CA3

Filed 5/17/23 P. v. Melger CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C097150

Plaintiff and Respondent, (Super. Ct. No. 62-185346)

v.

THOMAS JOSEPH MELGER,

Defendant and Appellant.

Defendant Thomas Joseph Melger appeals from an order dismissing a petition to revoke his postrelease community supervision and terminating that supervision. Defendant’s appointed counsel has 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.) However, defendant is not entitled to Wende review in this case because this “is not a direct appeal from a judgment of conviction.” (People v. Freeman (2021) 61 Cal.App.5th 126, 133 [appeal from order revoking and reinstating postrelease community supervision not subject to Wende review].) More importantly, even if we

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were inclined to engage in discretionary Wende review, we cannot do so because this appeal is from a nonappealable order. We must therefore dismiss this appeal. FACTUAL AND PROCEDURAL BACKGROUND The facts of defendant’s underlying convictions did not make their way into the appellate record, nor are they relevant for our purposes. It will suffice to note that in June 2021, defendant was convicted of one count of burglary and was sentenced to serve two years eight months in prison. In February 2022, defendant was released on postrelease community supervision, subject to various terms and conditions, including the requirement that he obey all laws. In May 2022, the Placer County Probation Department filed a petition for revocation of defendant’s postrelease community supervision. The operative petition alleged that defendant failed to obey all laws when he, on one occasion, falsely identified himself to a peace officer, and on another occasion, committed two felony offenses: assault with a deadly weapon and vandalism of property valued at $400 or more. The petition recommended that a bench warrant issue for defendant’s arrest and that defendant be ordered to serve a disciplinary sentence of 180 days in jail. The aforementioned felony offenses were committed in Sacramento County. Defendant was arrested on those charges and was ultimately convicted and sentenced to serve five years four months in prison. In the meantime, the trial court in this case issued the requested bench warrant. The following month, apparently after defendant was sentenced in the Sacramento County matter, defendant filed a request for the following disposition with respect to the revocation petition: Defendant would admit each alleged failure to obey the law so long as the bench warrant was recalled, defendant’s misdemeanor case for falsely identifying himself to a peace officer was dismissed, the allegation that he committed the crime of assault with a deadly weapon was amended to allege that he committed a nonstrike assault by means of force likely to produce great bodily injury, and the 180-day