THE PEOPLE v. KEMONIE WHITE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Kemonie White appeals from the judgment entered after a hearing in which he was found to be in violation of probation.   The trial court executed appellant's previously suspended sentence of eight years in prison.

We appointed counsel to represent appellant on this appeal.   After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.   On July 11, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.   No response has been received to date.

The record shows that on June 24, 2009, over the People's objection, the trial court offered appellant a plea bargain in which appellant was granted five years of formal probation and a suspended eight-year prison term in exchange for which he pleaded no contest to transportation, sale, or offer to sell cocaine base (Health & Saf.Code, § 11352, subd. (a)) (count 1);  transportation of cocaine (Health & Saf.Code, § 11352, subd. (a)) (count 2);  possession for sale of cocaine base (Health & Saf.Code, § 11351.5) (count 3);  and possession for sale of cocaine (Health & Saf.Code, § 11351) (count 4).   Appellant admitted prior convictions for violations of Health and Safety Code sections 11351.5 and 11352, subdivision (a).   Appellant's maximum possible sentence was 33 years.   The trial court informed appellant of the terms and conditions of his probation.

On November 10, 2010, appellant was arraigned on the charge that he violated his probation.   At the probation violation hearing, Benjamin Morales, a deputy probation officer for Los Angeles County, testified that Long Beach gang detectives called him to respond to a residence in Long Beach on November 5, 2010.   He saw appellant at the location and, based on his training, he believed that appellant was under the influence of a controlled substance, either drugs or alcohol.   Appellant admitted to Morales that he had consumed alcohol, which was a violation of one of his probation conditions.   Morales did not conduct any field sobriety tests, and he did not smell alcohol on appellant.

Ronald Bournes, appellant's probation officer, testified that, according to the records maintained by appellant's previous probation officer, appellant had tested positive for cocaine on March 23, May 27, and May 29 in 2010.   Appellant failed to appear for a drug test on January 7, 2010.   Appellant also tested positive for cocaine on October 7, 2010.   As of the date of the hearing, appellant had not enrolled in or completed the court-ordered drug and alcohol program.   Bournes was working with appellant under the understanding that appellant was going to start a program and was trying to find one that would fit with his work schedule.   Bournes believed that appellant was trying to comply with the terms of probation.

One of appellant's probation conditions required him not to drive without being properly licensed and insured.   Appellant told Bournes he had received a ticket for driving with a suspended license on September 23, 2010.   People's exhibit No. 1 contained the arrest ticket and arrest report and appellant's photograph.   Although appellant is six feet one inch in height and weighs approximately 175 pounds, the description of the person who was arrested and was purportedly Kemonie White stated that he was five feet eight inches in height and weighed 300 pounds.

Rashad Minor testified that he was at the same residence in Long Beach when appellant was arrested, and he had been with appellant earlier that day.   They did not drink alcohol or do drugs during the day.   Appellant arrived at the residence 10 or 15 minutes after Minor, and the police arrived 10 or 15 minutes after appellant.   Minor did not see appellant drink or do drugs at the residence.   Testimony in support of appellant was heard from Karen Wyatt, a youth counselor and Roy Walters, whose children appellant babysat.

After hearing argument, the trial court found appellant in violation of probation, stating that appellant had been shown to be incapable of rehabilitation by the probation officer.   Probation was revoked and terminated.   In count 1, the trial court imposed a sentence of five years.   For the special allegation under Health and Safety Code section 11370.2, subdivision (a), the trial court imposed a consecutive three years, for a total of eight years.   On counts 2 and 3, the trial court imposed five years and three years for the enhancement under section 11370.2, subdivision (a).   In count 4, the trial court imposed four years and an enhancement of three years on the section 11370.2 subdivision (a) enhancement.   The sentences in counts 2, 3, and 4 were stayed pursuant to Penal Code section 654.

The trial court awarded appellant credits of 71 actual days, 71 conduct days, and two days from his original arrest on the charges.   Appellant was required to register as a narcotics offender pursuant to Health and Safety Code section 11590.   Pursuant to Health and Safety Code section 11372.5, appellant was ordered to pay a laboratory analysis fee of $50 and to submit a DNA sample as required by Penal Code section 296.

We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist.  (People v. Wende (1979) 25 Cal.3d 436, 441.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FOOTNOTES

FOOTNOTE.  

THE COURT: * FN*.  BOREN, P. J., ASHMANN–GERST, J., CHAVEZ, J.