Filed 8/5/22 P. v. Potter CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

GISELE MATTIE POTTER,

Defendant and Appellant.

 B314773

 (Los Angeles County

 Super. Ct. No. MA055588-01)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert G. Chu, Judge. Affirmed. 

The Law Office of Evan D. Williams and Evan D. Williams, 

under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance by Respondent. 

____________________________

In 2012, defendant and appellant Gisele Mattie Potter

pleaded no contest to possession of cocaine for sale. (Health & 
2

Saf. Code, § 11351.5.)1 Potter admitted that she suffered one

prior conviction pursuant to section 11351.5, and one prior 

conviction pursuant to section 11350, subdivision (a). The 

agreed-upon sentence was four years in prison, comprised of the 

low term of three years for violation of section 11351.5, plus one 

year for a prior conviction enhancement pursuant to Penal Code 

section 667.5, subdivision (b). The trial court agreed to release 

Potter on her own recognizance for two weeks to wrap up her 

affairs prior to sentencing. The court advised Potter that if she 

failed to return for sentencing or was discovered in possession of

a controlled substance, the court would sentence her to a term of 

nine years in prison. Potter failed to appear for sentencing, and 

the trial court issued a bench warrant for her arrest. 

Potter was taken into custody and appeared before the trial 

court on May 20, 2021. At a sentencing hearing on June 15, 

2021, Potter’s counsel argued that placement in a substance 

abuse program was an appropriate alternative to imprisonment. 

The court sentenced Potter to the upper term of four years in 

county jail.2 

1 All further statutory references are to the Health and 

Safety Code unless otherwise indicated.

2 At the time that Potter pleaded guilty, a defendant 

convicted of a violation of section 11351.5 could be sentenced to a 

term of three, four, or five years, plus an additional year for an 

enhancement under Penal Code section 667.5, subdivision (b). By 

the time Potter was sentenced in 2021, the Legislature had 

reduced the punishment for violation of section 11351.5 to a term 

of two, three, or four years, and abolished the one-year sentence 

for a prior conviction enhancement imposed pursuant to Penal 

Code section 667.5, subdivision (b).
3

Potter timely appealed. The notice of appeal indicated that 

the appeal was based on the sentence or other matters occurring 

after the plea that did not affect the validity of the plea, and the 

validity of the plea. Potter requested a certificate of probable 

cause. We granted the request.

We appointed counsel. After reviewing the record, counsel 

filed an opening brief asking this court to review the record 

independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 

441 (Wende). On June 1, 2022, we advised Potter that she had 30 

days to submit any contentions or issues she wished us to 

consider. No response has been received to date. However, 

Potter attached a five-page handwritten request for certificate of 

probable cause to the notice of appeal, which we address in lieu of 

a brief. 

In the notice of appeal, Potter argues: Her attorney “did 

nothing to represent [her]” at the 2021 sentencing hearing.

Potter did not want to be represented by appointed counsel but 

was told that she had no choice, which was not true because she 

had “the power to firer [sic] or hirer [sic] if I feel you are not the 

one for me”. Potter believed that another appointed attorney she 

had spoken with previously could negotiate a sentence of two 

years. 

The record does not support Potter’s complaint. At the 

2021 sentencing hearing, Potter expressed no dissatisfaction with 

counsel. Counsel argued, as Potter had requested, that 

placement in a substance abuse program was appropriate. 

Counsel stated that Potter was 65 years old at the time of the 

hearing. She lost her husband to cancer in 2012, which disrupted 

her life. Potter had moved to Nevada to be with family in 2012, 

and had only suffered a single arrest since that time, which 
4

Potter claimed had been dismissed, although the disposition was 

unknown. Potter suffered from a substance abuse disorder. In 

light of all of these factors, Potter should be placed in a substance 

abuse program as an alternative to imprisonment. The trial 

court explained that it was sentencing Potter to the upper term of 

four years because, although the court often gave defendants 

second chances, Potter had broken the agreement that she made 

with the court in 2012, and “I take those deals very seriously.” 

Potter next argues in the notice of appeal: Her sentence of 

four years was too harsh, and that the judge was “out to make a 

point.” “[H]e was prejudice, [sic] reckless, sexist[, and had] no 

respect for our laws.” The Deputy District Attorney said to the 

trial court, “‘but your honor this case has ran its course 9 1/2 year 

[sic]. From March 12, 2012 to May 9, 2021.’” The trial court 

replied “‘he didn’t care and he was ready to sentence me. . . .’”

The Deputy District Attorney attempted to tell the trial court 

that the charge had “a statute of three years.” 

The record does not contain the statements that Potter 

alleges the court and Deputy District Attorney made. Potter’s 

assertion that section 11351.5 is not punishable by a term of 

more than three years is inaccurate. The upper term of 

imprisonment for a violation of section 11351.5 is four years. 

(§ 11351.5.) Potter’s claim that the trial court was biased is not 

supported by the record. The trial court explained that it 

imposed the upper term because Potter broke her promise to the 

court and failed to appear at the sentencing hearing. 

Finally, Potter complained that she had not been sentenced 

to a misdemeanor pursuant to Proposition 47. Proposition 47 

made “certain drug- and theft-related offenses misdemeanors, 

unless the offenses were committed by certain ineligible 
5

defendants.” (People v. Rivera (2015) 233 Cal.App.4th 1085, 

1091.) However, section 11351.5, under which Potter was 

convicted, is unaffected by the legislation.

We have examined the entire record. We are satisfied no 

arguable issues exist and that Potter’s counsel has fully satisfied 

his responsibilities under Wende. (Smith v. Robbins (2000) 528 

U.S. 259, 279–284; Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

We affirm the trial court’s judgment.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.