Filed 10/29/13 P. v. Sears 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yuba)


THE PEOPLE,                                                                                  C073758

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF12667)

         v.

TANYA KAY SEARS,

                   Defendant and Appellant.




         This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
         On November 30, 2012, defendant Tanya Kay Sears punched, hit, kicked, and bit
her live-in girlfriend, causing bruises. Defendant had previously been convicted of
domestic violence.
         Defendant entered a no contest plea to corporal injury to a cohabitant with a prior
(Pen. Code, § 273.5, subd. (e)(1)) in exchange for no state prison at the outset and
dismissal of case No. CRM12970. The court suspended imposition of sentence and
granted probation for a period of three years subject to certain terms and conditions
including 180 days in county jail and that she abstain from the use of controlled
substances.



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       About a month later, while in county jail, defendant violated probation by testing
positive for methamphetamine. The court sentenced defendant to state prison for the
upper term of five years.
       Defendant appeals. She did not request a certificate of probable cause (Pen. Code,
§ 1237.5).
       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. (Wende, supra, 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.
       Defendant filed a supplemental letter brief, contending that she was sentenced to
the upper term of five years for a “dirty test,” her first violation of probation, and that she
should have been offered a “drug program.” We reject both contentions.
       Defendant was granted probation pursuant to the terms of the plea agreement.
Defendant was otherwise ineligible for probation given that she had two prior felony
convictions (burglary & receiving stolen property) and the court had to find her case to be
an unusual one. (Pen. Code, § 1203, subd. (e)(4).) Probation recommended that the
court reject the plea agreement. The court made an unusual case finding, approved the
plea agreement, and ordered probation to prepare the terms and conditions of probation.
Between the date of the court‟s approval of the plea agreement and probation preparing
the terms, defendant allegedly committed another act of domestic violence and a
substance abuse violation. Despite these new allegations (which had not yet been
adjudicated), the court granted probation. Probation is “an act of clemency and grace.”
(People v. Rodriguez (1990) 51 Cal.3d 437, 445.) A trial court has very broad discretion
in denying and revoking probation and an appellate court interferes with that discretion
“ „only in a very extreme case.‟ ” (Id. at p. 443.) Defendant was given an extraordinary
opportunity in view of the new allegations and her criminal history which included over

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20 misdemeanors and two prior felony convictions, the current case being her third
felony conviction. While in county jail, defendant used methamphetamine on two
occasions which she admitted. Defense counsel requested continued probation with
residential drug treatment and defendant offered to waive all credit. Defense counsel
noted mitigating factors of defendant‟s early admission and her addiction to
methamphetamine which played a role in the underlying offense. Probation reported that
defendant would not respond favorably to treatment. The trial court reasonably
concluded that defendant was deserving of no additional leniency. Noting defendant was
ineligible for probation without an unusual case finding, the trial court denied probation
and found numerous aggravating factors to justify the upper term for defendant‟s felony
conviction of domestic violence, including defendant‟s lengthy criminal record, her
unsatisfactory performance on probation and parole, her prior prison terms, that she
engaged in violent conduct indicating a serious danger to society, and that she was on
summary probation and postrelease community supervision when she committed the
current offense. We find no abuse of discretion. (People v. Carmony (2004) 33 Cal.4th
367, 376-377.)
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is affirmed.


                                             BLEASE                   , Acting P. J.

We concur:


         BUTZ                      , J.


         MURRAY                    , J.


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