Filed 3/29/22 P. v. Newton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AUSTIN DAVID JACOB NEWTON,

Defendant and Appellant.

F081825

(Super. Ct. No. 4003736)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Robert B. 

Westbrook, Judge.

Francine R. Tone, 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 Detjen, Acting P. J., Snauffer, J. and De Santos, J.
2.

STATEMENT OF APPEALABILITY

This appeal is from a judgment that finally disposes of all issues between the 

parties. (Pen. Code, § 1237;1 Cal. Rules of Court, rule 8.204(a)(2)(B).)

STATEMENT OF THE CASE

A. Case No. CR-20-007715

Pursuant to a complaint filed on August 14, 2020, in case No. CR-20-007715, 

Newton was charged with felony intimidating a witness with force or fear or threat of 

force or fear (§ 136.1, subd. (c)(1); count 1) and misdemeanor petty theft (§ 484, 

subd. (a); count 2). 

On September 21, 2020, the parties negotiated a plea wherein Newton pled no 

contest to one misdemeanor count of dissuading a witness. (§136.1, subd. (a)(1).) 

Newton was sentenced to 365 days in custody. Newton appealed and was granted a 

certificate of probable cause. The appeal related to case No. CR-20-007715 has been 

transferred to the Appellate Division of the Stanislaus County Superior Court per order of 

this court dated April 14, 2021.

B. Case No. 4003736

On July 6, 2017, in an older and unrelated case, Newton was charged with felony 

grand theft. (§ 487, subd. (a).) On October 17, 2017, after a plea, he was sentenced to a 

two-year term, one year in county jail and one year on mandatory supervision, pursuant 

to section 1170, subdivision (h).

On February 8, 2018, a petition to revoke mandatory supervision was filed. The 

court revoked, reinstated, and modified mandatory supervision by imposing an additional

30 days in jail.

On August 2, 2018, a second petition to revoke mandatory supervision was filed. 

On September 10, 2018, Newton admitted the violation of mandatory supervision and the 

1 Subsequent statutory references are to the Penal Code. 
3.

previously imposed sentence of two years was ordered to be served in prison with credits 

of 424 actual days plus 206 days of good time/work credits. Subsequently, a new 

abstract of judgment was filed, which included three additional cases (none of which are 

part of this appeal), for a total term of three years four months in state prison

Newton was released from prison and on August 1, 2019, a petition to revoke post

release community supervision was filed. The post release community supervision was 

revoked, reinstated, and modified to include 60 days in jail.

On May 7, 2020, a second petition to revoke post release community supervision 

was filed. On September 21, 2020, a hearing was held in conjunction with case No. CR20-007715 and other cases. Pursuant to a negotiated plea, the court revoked the post

release community supervision in case No. 4003736, Newton admitted the violation, the 

court reinstated and modified the post release supervision and ordered Newton to serve 

90 days in jail consecutive to the sentencing in case No. CR-20-007715. Newton appeals 

from this case. 

C. Discussion Before Resolution

On September 21, 2020, a hearing was set in case No. CR-20-007715. The post

release community supervision case (No. 4003736), was not on calendar that day. The 

court calendar indicated the hearing was a pretrial hearing. The court minutes indicate 

the matter was set for “pretrial” but the word “pretrial” is scratched out and the word 

“prelim” was interlineated.

At the September 21, 2020, hearing, Newton asked the court to inform him of all 

pending cases. The court clerk indicated she had pulled a case ending in 310 and another 

ending in 736 (No. 4003736). The court determined the case ending in 310 was a new 

case regarding possession of methamphetamine and no complaint was available. The 

court determined the case ending in 736 was a pending violation of post release 

community supervision.
4.

Newton stated he wanted to plead no contest to all charges which included two 

possessions of drug paraphernalia, one possession of methamphetamine, and one petty 

theft. The court stated it did not have all cases before it. The district attorney also said a 

new case for battery was pending for which a court case number was not yet available, 

but she would resolve that case also, with a dismissal in exchange for restitution. 

Discussions were had about offers from the district attorney and a counteroffer 

from Newton. When no negotiated plea was in sight, Newton stated he would proceed 

with a preliminary hearing. The district attorney requested that the preliminary hearing 

trail for 30 days and informed the court that she planned to amend the complaint to add a 

section 211 robbery charge. 

Newton stated he wanted to plead no contest to and be sentenced on the petty 

theft. The court indicated it could not take that plea bargain because another charge was 

included.

The parties went off the record and returned with a negotiated plea, as set forth 

below.

D. Resolution

1. Case No. 4003736

Pursuant to the negotiated plea, Newton admitted the post release community 

supervision violation in case No. 4003736. Pursuant to the terms of the negotiated plea, 

the court revoked, reinstated, and modified the terms of the post release community 

supervision and ordered Newton to serve 90 days in jail, consecutive to the sentencing in 

case No. CR-20-007715. The court then went off the record to take the plea in case No. 

CR-20-007715.

2. Case No. CR-20-007715

In case No. CR-20-007715, before a preliminary hearing was conducted, Newton 

pled no contest to one misdemeanor count of dissuading a witness. (§ 136.1, 

subd. (a)(1).) In exchange for the plea, the parties agreed that the current charge would 
5.

not constitute a violation of probation and no charges would be filed in “P20008246.” 

Newton was sentenced to 365 days in jail. The appeal related to case No. CR-20-007715 

has been transferred to the Appellate Division of the Stanislaus County Superior Court 

per order of this court dated April 14, 2021.

E. Notice of Appeal

On October 5, 2020, Newton filed a felony notice of appeal in case No. CR-20-

007715 without the assistance of counsel. The trial court granted a certificate of probable 

cause.

On November 20, 2020, Newton timely filed a notice of appeal in case 

No. 4003736.

F. Amended Notice of Appeal

After counsel was appointed, counsel learned Newton intended to and desired to 

appeal from both case Nos. CR-20-007715 and 4003736 and filed an amended notice of 

appeal on November 20, 2020.

STATEMENT OF FACTS

This case was resolved without a preliminary hearing or referral to a probation 

officer for a report. Accordingly, no facts are available except as stated in the petitions 

for violation of post release community supervision and complaints.

APPELLATE COURT REVIEW

Newton’s appointed appellate counsel has filed an opening brief that summarizes 

the pertinent facts, raises no issues, and requests this court to review the record 

independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes 

the declaration of appellate counsel indicating Newton was advised he could file his own 

brief with this court. By letter on June 14, 2021, we invited Newton to submit additional 

briefing. To date, he has not done so.
6.

Having undertaken an examination of the entire record, we find no evidence of 

ineffective assistance of counsel or any other arguable error that would result in a 

disposition more favorable to Newton.

DISPOSITION

The judgment is affirmed.