Filed 5/6/16 P. v. Gammell CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070681
         Plaintiff and Respondent,
                                                                          (Super. Ct. Nos. MCR035579B &
                   v.                                                              MCR036184A)

THOMAS JAMES GAMMELL,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.

         Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *Before    Levy, Acting P.J., Kane, J. and Peña, J.
                    PROCEDURAL AND FACTUAL SUMMARY
       On November 23, 2009, defendant Thomas James Gammell pled guilty to one
felony count of taking a vehicle (Veh. Code, § 10851, case No. MCR035579) and one
felony count of second degree burglary (Pen. Code, § 459, case No. MCR036184A).
Defendant admitted two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
Defendant executed declarations regarding his guilty pleas, acknowledging and waiving
his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re
Tahl (1969) 1 Cal.3d 122. Defendant also acknowledged the consequences of his plea
and a factual basis for his change of plea. Under the terms of the plea agreement,
defendant agreed to a stipulated prison term of four years, to be suspended while he
completed a drug rehabilitation program.
       On December 23, 2009, the trial court sentenced defendant according to the terms
of the plea agreement to a prison term of four years, suspended execution of defendant’s
sentence, and placed defendant on formal probation upon various terms and conditions
for five years. The remaining allegations against him were dismissed. Defendant did not
file an appeal from these proceedings.
       Defendant admitted he violated the terms of his probation on May 26, 2010,
December 3, 2010, August 9, 2011, and January 22, 2013. On each occasion, the trial
court ordered defendant to a term in county jail or to serve community service and
reinstated his probation. On April 1, 2014, the probation department filed a notice that
defendant was in violation of the terms of his probation because he tested positive for the
presence of methamphetamine and marijuana and had yet to reenroll or complete the
Madera Day Reporting Program.
       On April 18, 2014, the court conducted a hearing on defendant’s latest violation of
probation. Defense counsel indicated defendant would admit the allegations. The court
advised defendant of his rights to a contested hearing, which defendant waived.
Defendant indicated he had discussed these rights with his attorney, understood them, and


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had no questions for the trial court. Defendant admitted he was in violation of the terms
and conditions of his probation as alleged by the probation department.
       On September 9, 2014, the court sentenced defendant in case No. MCR035579B,
taking a vehicle, to a prison term of two years plus a consecutive term of one year for
each prior prison term enhancement. Defendant’s total sentence was set at four years.
The court imposed a concurrent term of two years for defendant’s conviction for burglary
in case No. MCR036184A. The court imposed a restitution fine of $200 in each case and
imposed various other fines, penalties, and fees. Defendant received total custody credits
of 792 days in case No. MCR035579B and 1,302 days in case No. MCR036184A. On
December 31, 2014, the trial court granted defendant’s motion to reduce defendant’s
burglary conviction in case No. MCR036184A from a felony to a misdemeanor pursuant
to section 1170.18. Defendant’s concurrent prison term for that conviction was ordered
to be served in local custody and the court ordered an amended abstract of judgment.
Defendant failed to obtain a certificate of probable cause.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436.
                            APPELLATE COURT REVIEW
       Defendant’s appointed appellate counsel has filed an opening brief summarizing
the pertinent facts, raising no issues, and requesting this court to review the record
independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating defendant was advised he could
file his own brief with this court. By letter on April 24, 2015, we invited defendant to
submit additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                      DISPOSITION
       The judgment is affirmed.


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