People v. Rusher CA2/2 ( 2014 )

Filed 1/15/14 P. v. Rusher CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B249334
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA079263)
v.
FANIEL RAMON RUSHER,
Defendant and Appellant.
THE COURT:*
Defendant and appellant Faniel Ramon Rusher (defendant) appeals his attempted
burglary conviction. His appointed counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal. 3d 436 (Wende), raising no issues. After defendant was notified of his
counsel’s brief he filed his own letter brief, asserting ineffective assistance of counsel.
We have reviewed the entire record and find that defendant’s contentions are not
amenable to review on appeal. Finding no other arguable issues, we affirm the judgment.
In 2011, after defendant pled no contest to attempted first degree burglary and
admitted a prior serious felony conviction and prior prison term, the trial court sentenced
him to nine years in prison, suspended execution of sentence and placed defendant on
formal probation. Conditions of probation included one year in county jail, payment of
mandatory fines, fees, and victim restitution, as well as maintaining a residence approved
* BOREN, P. J ., ASHMANN-GERST, J., CHAVEZ, J.,
by the probation officer, obeying all laws and regulations of the probation department and
the court, and submitting himself to the supervision of the probation department.
In October 2011, the trial court summarily revoked defendant’s probation after
learning he had been sentenced to prison by a court in San Francisco. The court later
reinstated defendant’s probation nunc pro tunc, as his request for immediate sentencing in
this case was not processed within the time required by Penal Code section 1203.2a.1
In February 2013, the court again summarily revoked defendant’s probation upon
learning he had been arrested in San Francisco on a new charge. At the probation
violation hearing on May 23, 2013, the trial court also heard defendant’s oral motion to
suppress evidence brought pursuant to section 1538.5. Deputy Probation Officer Michael
Reich testified that in his initial meeting with defendant in April 2011, he informed
defendant that defendant was prohibited from leaving Los Angeles County without
permission and that he was required to report to the probation office in Compton on April
25, 2011. Defendant failed to report on the scheduled date or at any other time. Further,
although he was given a monthly payment plan, defendant failed to make any court
ordered payments.
San Francisco Police Officer Christina Hayes testified that she arrested defendant
on January 17, 2013, after finding methamphetamine on his person during a consensual
stop at a hotel known for drug and prostitution activities. She had encountered defendant
before and determined that he was on probation in Los Angeles County, as well as on
postconviction supervised release2 in San Francisco County, which included a search
condition.3 After Officer Hayes searched defendant and found a plastic bag containing
white powder, defendant admitted the substance contained methamphetamine. The
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 See section 3450 et seq.
3 Persons supervised under section 3450 et seq. “shall be subject to search at any
time of the day or night, with or without a warrant, by an agent of the supervising county
agency or by a peace officer.” (§ 3453, subd. (f).)
2
preliminary (“presumptive”) test Officer Hayes conducted on the substance indicated the
presence of methamphetamine.
The trial court denied defendant’s motion to suppress evidence and found him in
violation of the terms and conditions of his probation. The court imposed the previously
suspended sentence of nine years, awarded custody credit of 494 days, which include the
365 days defendant had originally served, plus an additional 126 actual days and 63 days
of conduct credit. Defendant filed a timely notice of appeal.
Defendant contends that his counsel rendered ineffective assistance, although it is
unclear from his letter whether he refers to his original conviction, his probation violation
hearing, or some other proceeding. Defendant’s contention is based upon representations
allegedly made by his attorney, probation officer, a judge, and the Board of Prison
Terms,4 which he has enumerated in his letter. As these representations do not appear in
the record defendant’s claim of ineffective assistance of counsel must be raised in a
habeas corpus proceeding. (See People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266-
267.)
We are satisfied from our examination of the entire record that defendant’s
attorney has fully complied with his responsibilities and that no arguable issue exists.
We conclude that defendant has, by virtue of counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective appellate review
of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259,
278; People v. Kelly (2006) 40 Cal. 4th 106, 123-124.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
4 The Board of Prison Terms is now the Board of Parole Hearings. (Pen. Code,
§ 5075, subd. (a).)
3