Filed 10/30/14 P. v. Shell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER A. SHELL, Defendant and Appellant. D065143

(Super. Ct. No. SCS265808, SCS267045)

APPEAL from a judgment of the Superi or Court of San Diego County, Ana L. Espana, Judge. Affirmed. Ava R. Stralla, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, for Plaintiff and Respondent. Appellant Christopher A. Shell plead ed guilty to possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in People v. Shell (Super. Ct. S.D. County, 20 13, No. SCD267045 (case No. SCD267045), and he appeals from the final judgment entered after that plea under People v. Wende (1979) 25 Cal.3d2 436 ( Wende ) and Anders v. California (1967) 386 U.S. 738 ( Anders ). As we conclude there was no error, we affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND This appeal arises from a judgmen t following guilty pleas entered in People v. Shell (Super. Ct. S.D. County, 2013, No. SCS 265808 (case No. SCS 265808) and in case No. SCS267045. As such, we have only Shell's statemen t of the offenses from the change of plea forms, in which he respectiv ely admitted he "possessed a usable quantity of methamphetamine for personal use" and "unlawfully possessed a controlled substance: methamphetamine in a usable amount." The procedural background of these cases is discussed below. Case No. SCD265808 An amended felony complaint filed July 26, 2013 (case No . SCS265808), alleged Shell violated Health and Safety Code sec tion 11377, subdivision (a) (possession of a controlled substance: metham phetamine; counts 1 and 3) a nd Health and Safety Code section 11364.1, subdivision (a ) (possession of paraphernalia used for narcotics; counts 2 and 4). It also alleged Shell had previo usly suffered four probation denial prior convictions within the meaning of Pena l Code section 1203, subdivision (e)(4). That same day, Shell waived his rights and pleaded guilty to count 3 in exchange for a dismissal of the remaining charges and his agreement he would serve 365 days in local custody and be released to a residen tial rehabilitation facility when a bed became available. The court advised Shell of his constitutional rights, and also that the charge carried a maximum sentence of three year s in prison plus a term of mandatory3 supervision, a $20,000 fine, and three year s of parole or postrelease community supervision with a return to custody for each violation of probation condition. Shell stated he understood his rights and would give them up. He stated he understood the other information and the cons equences of his plea. The court accepted the plea, found Shell had knowingly, intelligen tly, and voluntarily waived his constitutional rights, and granted the motion to dismiss the remaining charges. The court dismissed a trailing misdemeanor case ( People v. Shell , Super. Ct. S.D. County, 2013, No. SCS263588) and formally revoked, reinstated and term inated probation on two other cases ( People v. Shell , Super Ct. S.D. County, 2012, Nos. SCS258846, SCS254247) also involving possession of a controlle d substance. In August 2013, Shell's co unsel informed the court that Shell wished to withdraw his plea, and the court held a Marsden hearing ( People v. Marsden (1970) 2d Cal.3d 118), after which it denied Shell's request to represent himself. The court suspended imposition of sentence and granted Shell three years of formal probation and committed him to the custody of the sheri ff for 365 days with 88 days of credit. The court ordered that Shell may be released to an author ized public defender's representative upon availability of a bed in a resi dential treatment program. In September 2013, Shell was arrested by his probation officer for various offenses, including possession of a controlled substance. The court summarily revoked his probation and set the matter for an eviden tiary hearing on September 25, 2013. The probation department filed a report of Shell' s re-arrest, and a notic e to show cause why Shell's probation should not be revoked. Th e probation officer stat ed he believed Shell4 had violated the probation c onditions to "[o]bey all laws" and "not knowingly use or possess any controlled substance w ithout a valid prescription." Case No. SCS267045 On September 25, 2013, the day of Sh ell's evidentiary h earing in case No. SCS265808, the district attorn ey filed an amended complaint under case No. SCS267045 charging new offenses including oral copul ation by force (Pen. Code, § 288a, subd. (c)(2)(A)), false imprisonment by violence, me nace, fraud or deceit (Pen. Code, §§ 236, 237, subd. (a)), possession of controlled su bstance (Health & Saf. Code, § 11377, subd. (a)), and resisting an officer (Pen. Code, § 148, subd. (a)(1)). The court proceeded with the evidentiary hearing as we ll as a preliminary hearing on the amended complaint. Defense counsel stated that Shell had declined an offer to plead gu ilty to possession of a controlled substance, and the hearing proceeded with the te stimony of the police officer who had found methamphetamine on Shell's pe rson after his arrest and the beginning of testimony from Shell's alleged victim. After a short break, Shell's counsel submitted a change of plea form by whic h Shell would plead guilty to possession of a controlled substance, methamphetamine in a usable amount, in exchange for dismissal of the remaining counts and consolida tion with case No. SCS265808. 1 Shell initialed the change of plea form in which he stated he en tered into the plea freely and voluntarily, he was sober and that his judgment was not impa ired, and he had not be en induced to enter into the plea by any representa tion of any kind other than th e dismissal and "wrap" with

1 The plea form refers to "wrap with pr obation" which the probation department referred to as consolidation.5 probation. In response to the court's ques tioning, Shell admitted he read and understood the contents of the plea form, had no questions about it, thoroughly discussed all of his options with his attorney, and understood that by pleading guilty he was giving up his constitutional rights to a speedy and public jury trial, to confront and cross-examine witnesses, the right to remain silent, and th e right to present witnesses on his behalf. Shell then entered his plea of guilty. Defens e counsel concurred in the plea. The court stated it found Shell "knowingly, intelligently , and voluntarily waived his constitutional rights with an understanding of the nature and the char ges pending as well as the consequences of the plea." It found there wa s a factual basis for the plea and accepted the plea, finding Shell guilty. It granted the People's motion to dismiss the balance of the charges. The court formally revoked prob ation in case No. SCS265808, and set the matter for sentencing after revocation to trail sentencing in the new case. Several days later, Shell wrote to the tr ial court and complained that on the day of his guilty plea, his counsel had lied to him by te lling him he would be released that night. Shell asked to be released, or that the cour t set an "emergency" hearing to discuss the matter with new counsel or with Shell repres enting himself. The court in an ex parte hearing denied Shell's request for early release and set the matter for another Marsden hearing. On October 23, 2013, the court signe d an order in case No. SCS265808 suspending execution of the last one year of Shell's sentence and granting Shell mandatory supervision under va rious terms and conditions. Th e next day, the court held a hearing in case No. SCS267045 for sentencing. The court expressed its indication to6 sentence Shell to a midterm of two years in lo cal prison, split, so he would have one year of actual time with 92 days of section 4019 cr edits, with the balance of the year in the community under mandatory supervision. She ll told the court he was prepared to go forward "if it gets me out toda y," and he repeated his asse rtion that he was under the impression when he entered his plea that he was to be released that night. The court explained to Shell that he had entered into a significant plea deal, and that it did not know where Shell had gotten the idea he would be rel eased when he entered his plea. The court said, "[H]ere is the deal. I can go forward w ith sentencing today, and we will be done with it. I've already told you wh at I think is the right thing to do in this case. [¶] Do you want me to go forward today or do you want to do a Marsden , and then we will start over with the sentencing, continue it a couple of weeks so that you can have a different attorney? It's totally up to you." Shell responded by asking if he could get out on probation, and the court told him he could no t, and reiterated its sentencing indication. When Shell stated he wanted to "fight" his sentence, the court said, "I think [defense counsel Hernandez] was going to make a recommendation a nd argument today on your behalf for probation. . . . [¶] Do you wa nt him to make that argument or a different attorney or if you felt something different? Wh at do you want to do?" Shell responded, "If he can fight, yeah. I want to fight to ge t out tonight." The cour t stated that counsel was ready to make that argument, and Shell said, "All right." Shell's defense counsel asked the court to give Shell straight probation and credit for time served, explaining that Shell was a drug addict and was not eligible for Proposition 36. Ultimately, the court ordered Shell to be comm itted to the custody of the7 sheriff for the midterm of two years, with one year in custody and 92 days of credit, and one year of mandatory supervision. The co urt emphasized it wanted Shell to attend and successfully complete a drug treatment program , if directed by the probation officer. It terminated Shell's probation in case No. SC S265808 without objecti on by the People. Shell filed a notice of appeal challengi ng both the validity of his plea and his sentence or matters after his plea that do not affect the plea's va lidity, and obtained a request for a certificate of probable cause. In his request, Shell asserted that because of attorney Hernandez's "misguidanc e" he had entered into the plea, and that he had been denied a Marsden hearing and his right to due process. In March 2014, the court denied Shell's le tter request in which Shell asserted he had a substance abuse problem but was not receiving treatment fo r his addiction and sought to modify his sentence to a residentia l drug treatment progra m. Relying on Penal Code section 1170, subdivision (d), 2 the court ruled it lacked jurisdiction because more than 120 days had lapsed since Shell was sent enced. The court noted Shell had a lengthy criminal history involving drugs and other violations, a nd had had numerous

2 Penal Code section 1170, subdivision (d ) provides in part: "When a defendant subject to this section or subdivision (b) of [Penal Code s]ection 1168 has been sentenced to be imprisoned in the st ate prison and has been comm itted to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the s ecretary or the Board of Parole Hearings, recall the sentence and commitmen t previously ordered and re sentence the defendant in the same manner as if he or she had not pr eviously been senten ced, provided the new sentence, if any, is no greater than the in itial sentence." (Pen. Code, § 1170, subd. (d)(1).)8 opportunities to address his drug problem, and therefore it was not in clined to consider residential drug treatment in lieu of pris on. The court recommended that Shell attend Narcotics Anonymous and Alcoholics Anonym ous meetings while in custody, and inquire into drug treatment options upon his release.
DISCUSSION Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende , supra , 25 Cal.3d 436. Under Anders v. California , supra , 386 U.S. 738, counsel identifies the following possible appellate issues: 1. Whether Shell was properly advised of the consequences of pleading guilty and his constitutional rights, and whether he wa ived them before pleading guilty. 2. Whether there is evidence in the r ecord compelling the trial court to hold a Marsden hearing when Shell compla ined about his counsel, or did Shell's subsequent comment demonstrate he had abandon ed any intention of requesting a Marsden hearing. 3. Whether the court abused its disc retion in denying proba tion and sentencing Shell to one year in local custody and one year of mandator y supervision. 4. Whether there is merit to Shell's st atement in his request for a certificate of probable cause that he was misled by his defense counsel that he would get out of custody immediately and be under the auspic es of drug court; whether his due process rights were violated; whether his counse l rendered ineffective assistance.9 5. Whether the trial court correctly de nied Shell's request to recall his sentence under Penal Code section 1170, subdivision (d). We granted Shell permission to file a s upplemental brief on his own behalf, but he did not respond. (See People v. Kelly (2006) 40 Cal.4th 10 6, 109-110 [a decision affirming the judgment in a Wende appeal requires the Court of Appeal to consider defendant's personally filed supplemental c ontentions and the reasons they fail].)
I. Our reading of the record shows the guilty pleas were entered in accordance with Boykin/Tahl ( Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122) and supports the trial court' s finding—at the time of his plea—that Shell knowingly, intelligently and voluntarily wa ived his rights and understoo d the consequences of his plea.
II. We conclude Shell abandoned his request for a Marsden hearing after the trial court invited him to decide whether he wi shed to proceed on such a hearing, by expressing his agreement that attorney Hernandez "fight" for his release and not further mentioning his Marsden request that day. In People v. Vera (2004) 122 Cal.App.4th 970, the Court of Appeal stated: "While we ar e aware of no precedent finding abandonment of a Marsden motion, it is established that a defendant's conduct may amount to abandonment of a request to represent himself under Faretta v. California (1975) 422 U.S. 806. [Citations.] If a defendant can ab andon his request to substitute himself for counsel, a defendant can abandon his reque st to substitute another counsel." ( Vera , at pp.10 981-982; see also People v. Jones (2012) 210 Cal.App. 4th 355, 361 [citing Vera with approval].)
III. We conclude the trial court did not abus e its discretion in denying Shell probation and sentencing him to a split sentence of coun ty jail and mandatory supervision. (Pen. Code, § 1170, subd. (h).) The decision to grant or deny probation is vested in the sound discretion of the trial courts. Such decisi on will not be overturne d on appeal unless the record demonstrates the trial court's " 'decision is so i rrational or arbitrary that no reasonable person could agree with it.' " ( People v. Stuart (2007) 156 Cal.App.4th 165, 179; see also People v. Carmony (2004) 33 Cal.4th 367, 377.)
IV. We conclude the trial court ensured that Shell understood his plea agreement and the consequences of his plea, and Shell ad mitted he had not been made promises in exchange for his guilty plea othe r than what was reflected on the plea form; that his due process rights were not violated and his counsel rendered effective assistance in connection with Shell's plea, which avoided significant prison time for the other charged offenses.
V. We conclude the trial court correctly ru led it lacked jurisdiction to recall Shell's sentence, as the 120-day period had expired as of the end of February 2014. (Pen. Code, § 1170, subd. (d); People v. Willie (2005) 133 Cal.App.4th 43, 49 [court's jurisdiction to recall sentence expires after 120 days].)11 Finally, a review of th e entire record pursuant to People v. Wende , supra , 25 Cal.3d 436 and Anders v. California , supra , 386 U.S. 738 has disclosed no other reasonably arguable appellate issue.
DISPOSITION The judgment is affirmed.

O'ROURKE, J. WE CONCUR:

McCONNELL, P. J.

HALLER, J.