Filed 7/29/15 P. v. Harris CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A143606
v.
GRADY LEE HARRIS,                                                        (San Mateo County
                                                                         Super. Ct. No. SC078374A)
         Defendant and Appellant.


         Defendant Grady Lee Harris appeals from the revocation of his probation and his
commitment to state prison. His attorney has asked this court for an independent review
of the record to determine whether there are any arguable issues for review. (Anders v.
California (1967) 386 U.S. 738, 744; People v. Kelly (2006) 40 Cal.4th 106, 119; People
v. Wende (1979) 25 Cal.3d 436, 441-442.) Defendant was informed of his right to file a
supplemental brief and did not do so. Having independently reviewed the record, we
conclude there are no issues requiring further briefing and shall affirm the judgment and
order revoking probation.
                                   Factual and Procedural Background
         There was no preliminary hearing or trial. The probation officer’s report sets forth
the following factual allegations.




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       On May 23, 2013, defendant and another man used fraudulent “access cards”
(credit or debit cards)1 to purchase merchandise and gift cards at a department store.
Store security staff contacted the police. Police officers, upon arriving at the store, saw
the men run through the parking lot and enter a vehicle without license plates. The
officers stopped the vehicle, which was driven by defendant and registered to him under a
known alias. A search of defendant’s person found a dozen access cards that were
“skimmed,” meaning they had account numbers encoded on the magnetic strip that were
different from the account numbers embossed on the front of the card. The police located
a laptop computer in defendant’s vehicle, which defendant admitted belonged to him. A
search of the computer revealed files containing credit card account numbers and account
holder names. The police also found a loaded handgun in the trunk of defendant’s
vehicle.
       A complaint with 10 counts for fraud, theft and firearm offenses was filed on
May 28, 2013. On June 24, 2013, pursuant to a negotiated disposition, defendant entered
a no contest plea to three felony counts: second degree burglary (entering a store with
intent to commit larceny) (§§ 459, 460, subd. (b)), grand theft (unauthorized acquisition
of access card account information with fraudulent intent) (§ 484e, subd. (d)), and being a
felon in possession of a firearm (§ 29800, subd. (a)(1)). All other charges were dismissed
in exchange for defendant’s plea, with the understanding that the court could consider at
sentencing the facts underlying the dismissed counts. (People v. Harvey (1979) 25 Cal.3d
754, 758.) Defendant was promised a maximum prison sentence of three years if served
immediately or, if granted probation, a maximum suspended sentence of four years four
months that would be served if probation was violated and the sentence ordered executed.
Defendant completed a written waiver of rights signed by himself and his attorney. The


1
  An “access card” is defined as “any card, plate, code, account number, or other means
of account access that can be used, alone or in conjunction with another access card, to
obtain money, goods, services, or any other thing of value, or that can be used to initiate a
transfer of funds, other than a transfer originated solely by a paper instrument.” (Pen.
Code, § 484d, subd. (2).) All further statutory references are to the Penal Code.


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court orally questioned defendant and confirmed his understanding of the plea bargain
and waiver of constitutional rights. Defense counsel conceded there was a factual basis
for the plea and joined in defendant’s waiver of rights.
       In advance of sentencing, a probation officer filed a report recommending denial
of probation. The report stated that defendant was a 45-year-old repeat offender with an
“extensive criminal history” involving convictions for burglary, fraud, and forgery who
violated prior grants of probation. Defendant was on probation at the time of the current
offenses, the report noted. The prosecutor asked the court to deny probation and sentence
defendant to prison for two years.
       At the sentencing hearing on October 17, 2013, defense counsel asked the court to
grant probation and argued that defendant’s criminality is fueled by drug abuse best
addressed by referral to a treatment program. Defendant implored the court, in writing
and orally, to grant him probation. Defendant acknowledged he would receive a longer
sentence if he failed on probation than if probation were denied and he was immediately
committed to prison. Defendant said his willingness to accept that consequence “provides
. . . [an] indication of how bad I really want to change.”
       The court noted that it “would be taking a considerable chance” to grant probation
to defendant but would consider it if defendant agreed to waive credit “for all time and
purposes” and agreed to have “the max suspended sentence hanging over his head, which
is four years four months, which means if he blows it, that’s what he is going to get.” The
court warned defendant: “if I were to sentence you [to] what the District Attorney wants
me to sentence you to, two years, you would be out in six months [with credit for time
served]. That’s a lot easier probably to you to do than a serious major program.”
Defendant said he wanted probation, not execution of a prison sentence, and agreed to the
court’s conditions.
       The court granted probation and imposed and suspended execution of a prison
sentence of four years four months: the upper term of three years for being a felon in
possession of a firearm and consecutive terms of eight months each (one-third the middle



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term) on the burglary and theft counts. The court imposed various probation conditions,
including that defendant complete a residential treatment program and obey all laws.
       Six months later, on April 18, 2014, a petition to revoke probation was filed
alleging that defendant violated probation by committing identity theft and other
offenses, for which he had been arrested in another county. (§ 530.5, subd. (a).) He
pleaded guilty to the charge of identity theft and, in this case, admitted his violation of
probation. On September 19, 2014, the court found that defendant violated probation by
failing to obey all laws, revoked probation, and ordered execution of the previously
imposed but suspended prison sentence.
                                         Discussion
       We have reviewed the entire record and conclude there are no arguable issues that
warrant further briefing. Defendant was ably represented by counsel at every stage of the
proceedings. His plea was entered freely and knowingly with the concurrence and advice
of counsel. At defendant’s urging, he was granted probation and the opportunity to
receive substance abuse treatment but within months, and while still enrolled in the
treatment program, committed another criminal offense. Defendant admitted violating the
terms of his probation. The court acted reasonably in revoking probation and ordering
execution of the previously imposed prison sentence.
                                         Disposition
       The judgment and order revoking probation are affirmed.




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                                _________________________
                                Pollak, Acting P. J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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A143606




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