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People v. Henderson2/4/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
On July 7, 1998, defendant Seth Duane Henderson pleaded no contest to obstructing an officer. (Pen. Code, § 69.) Defendant was placed on probation for three years under a variety of conditions including that he serve jail time and participate in inpatient alcohol treatment. Defendant's probation was subsequently violated for being excluded from the alcohol program and driving under the influence . On May 1, 2001, defense counsel stated defendant agreed to an extension of probation by one year, and defendant waived any credit for time served of 363 days.
Defendant continued to accrue probation violations. On February 26, 2002, defendant admitted violating probation by consuming alcohol. Defendant admitted being under the influence of alcohol on two occasions on May 7, 2002. On June 4, 2002, after receiving a current probation report, the trial court sentenced defendant to the midterm of two years in prison, with credit for a total of 62 days.
Defendant filed a notice of appeal from the sentence. On October 9, 2002, appellate counsel filed an application for permission to seek a belated certificate of probable cause. We denied the application on October 31, 2002.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
On January 6, 2003, defendant filed a "Pro Per Wende Statement of Issues for Appellate Court to Consider." Defendant states: "Since the maximum possible term is less than 5 years the suspension of the sentence may continue past the maximum possible term of 3 years at the discretion of the court. However, the court did not exercise its discretion to have the imposition of the sentence remain suspended for the additional 12 months of probation." Defendant fails to recognize that when probation was extended on May 1, 2001, it was extended on all prior terms and conditions. Defendant signed an acknowledgement of those orders. Sentence was not imposed until May 7, 2002.
We find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur:
BLEASE, Acting P.J.
MORRISON, J.
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