Filed 9/22/16 P. v. Bean CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143350
v.
ERNEST T. BEAN, JR.                                                  (Solano County
                                                                     Super. Ct. No. FCR297725)
         Defendant and Appellant.


         Defendant Ernest T. Bean, Jr. was granted probation after he pleaded no contest to
possession of methamphetamine and admitted a prior prison commitment. He violated
his probation numerous times, resulting in his probation being revoked and reinstated
three times. Following the fourth revocation of probation, the trial court did not reinstate
probation, but sentenced him to three years and six months in the county jail pursuant to
Penal Code1 section 1170, subdivision (h).2 This appeal followed. Appointed counsel
for defendant asked this court to review the record independently to determine whether
there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436




1
         All further undesignated statutory references are to the Penal Code.
2
       Section 1170, subdivision (h)(1) provides that “a felony punishable pursuant to
this subdivision where the term is not specified in the underlying offense shall be
punishable by a term of imprisonment in a county jail for 16 months, or two or three
years.”



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(Wende)). Finding no arguable error that would result in a disposition more favorable to
defendant, we affirm the judgment.
                                     BACKGROUND
       In January 2013, defendant pleaded no contest to possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)) and admitted a prior prison commitment
(§ 667.5). Pursuant to the plea agreement, the trial court imposed a split sentence,
comprised of a four-year term in the county jail pursuant to section 1170, subdivision (h),
in which he would serve 180 days in the county jail or a residential treatment facility, and
the court would suspend the remaining three years and six months of the total sentence.
The court then placed defendant on mandatory supervision/ Post Release Community
Supervision (PRCS) pursuant to section 1170, subdivision (h)(5), and ordered his
participation in either a Diablo Valley or CAT II Program. The court ordered defendant
to pay various fines and fees, and gave him a total of 114 days credit.
       In June 2013, the court revoked mandatory supervision/PRCS due to defendant’s
failure to report to probation after he was discharged from the court-ordered program. In
July 2013, defendant admitted the violation, and the court revoked and reinstated
mandatory supervision/PRCS under the same terms and conditions.
       In October 2013, the court revoked mandatory supervision/PRCS after defendant
was discharged from the court-ordered program for possession of a knife; defendant
denied the allegations. Defendant claimed he had been cut and unlawfully drugged
during his stay at the program; the court ordered a mental health evaluation pursuant to
section 1368 and suspended proceedings. Proceedings were resumed after it was
determined that defendant could rationally assist his attorney.
       In November 2013, defendant admitted a violation, and the court revoked and
reinstated mandatory supervision/PRCS under the same terms and conditions.
       In February 2014, the court revoked mandatory supervision/PRCS for failure to
obey all laws. In March 2014, defendant admitted the violation, and in April 2014, the
court revoked and reinstated mandatory supervision/PRCS under the same terms and
conditions.


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       In June 2014, the court revoked mandatory supervision/PRCS pending a
revocation hearing. In August 2014, the revocation hearing was held and the court found
defendant to be in violation of his mandatory supervision/PRCS and split sentence.
       In September 2014, the court executed the previously suspended sentence of three
years and six months in county jail. Defendant received a total of 856 days credit: 566
time credits and 290 conduct credits.
       Defendant appealed. While his appeal was pending, defendant filed a petition to
reduce his felony conviction to a misdemeanor pursuant to section 1170.18, subdivision
(a), otherwise known as Proposition 47. The court granted the petition, reduced the
felony conviction to a misdemeanor, resentenced defendant to time served and released
him forthwith.
       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. More than 30 days have elapsed since
the filing of the opening brief, and we have received no communication from defendant.
                                        DISCUSSION
       Neither appointed counsel nor defendant has identified any issue for our review.
Upon our own independent review of the record, we agree none exists. (Wende, supra,
25 Cal.3d 436.) The trial court revoked defendant’s probation and imposed the
previously suspended sentence after giving defendant numerous chances to comply with
probation. At this point, defendant had his probation revoked and reinstated three times.
It was only after the fourth probation revocation did the trial court deny reinstatement and
impose the previously suspended sentence. The record reflects that defendant was
represented by counsel at all relevant times. Under these circumstances, we conclude the
trial court’s decision to revoke probation and reinstate the sentence based upon
defendant’s repeated violations of its terms and conditions was proper. (See People v.
Segura (2008) 44 Cal.4th 921, 932 [“During the period of probation, the court may


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revoke, modify, or change its order suspending imposition or execution of the sentence,
as warranted by the defendant’s conduct. (§§ 1203.2, 1203.3)” (Fn. omitted)].)
       Finally, we note that the trial court lacked jurisdiction to recall defendant’s
sentence and to sentence him pursuant to section 1170.18 while this appeal was pending.
(People v. Scarbrough (2015) 240 Cal.App.4th 916, 929-930.) Accordingly, defendant
may petition for recall of sentence in the trial court once his judgment is final. (Ibid.)
       Thus, having ensured defendant has received adequate effective appellate review,
we affirm the trial court’s judgment. (People v. Kelly (2006) 40 Cal.4th 106, 117-119;
Wende, supra, 25 Cal.3d 436.)
                                      DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




People v. Bean A143350




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