Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Superior Court Nos. NA066576 & NA069124, Gary J. Ferrari, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
Following revocation of probation, appellant Richard Sullivan Cowart was sentenced to prison for maintaining a place for the sale or use of a controlled substance (Health & Saf. Code, § 11366) (section 11366). The appeal involves two different superior court case Nos. NA066576 and NA069124. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief and has not done so.
The information in case No. NA066576 was filed on February 23, 2006. It charged appellant with committing the following crimes in July 2005: conspiracy to commit sale of methamphetamine (count 1), sale of a controlled substance (count 2), possession for sale of a controlled substance (count 3), and violating section 11366 (count 4).
The information in case No. NA069124 was filed on March 14, 2006. It charged appellant with committing the following crimes on February 8, 2006: possession for sale of a controlled substance (count 1), violating section 11366 (count 2), and possession of a controlled substance (count 3). Counts 1 and 2 also had an enhancement under Penal Code section 12022.1, which alleged that appellant was on bail on his own recognizance in case No. NA066576 when he committed the crimes in case No. NA069124.
Methamphetamine was the specified controlled substance in both cases.
On October 18, 2006, pursuant to a plea agreement, appellant pled no contest to the two section 11366 charges, count 2 in case No. NA069124 and count 4 in case No. NA066576. He also admitted the enhancement allegation in case No. NA069124. He agreed to a five-year suspended prison sentence, three years of formal probation, and 60 days of community service. That sentence consisted of the high term of three years on case No. NA069124, plus two years for the enhancement, and concurrent sentencing on case No. NA066576.
On May 15, 2007, appellant failed to appear regarding a probation violation and a bench warrant issued.
On July 27, 2007, the court recalled the bench warrant, summarily revoked probation, and remanded appellant into custody.
On August 3, 2007, appellant appeared on a new case No. NA075113, as well as for violating probation on the two earlier cases. The prosecutor indicated that appellant was eligible for Proposition 36 sentencing on the new case but not on the probation violation cases.
On August 10, 2007, appellant appeared again on all three cases. His counsel explained that “a small amount of drugs” was found on appellant when he was arrested on the warrant. Counsel hoped that appellant could enter a drug program or be sentenced under Proposition 36, but recognized there was a problem with the suspended sentence in case Nos. NA066576 and NA069124. Appellant waived a preliminary hearing on the new case and admitted that he was in violation of probation on the two other cases.
On October 15, 2007, because appellant violated probation, the court imposed the previously suspended sentence of five years in state prison on case No. NA069124 with a concurrent three-year sentence on case No. NA066576. In doing so, the court stated: “As far as the issue of the Prop[osition] 36, my research indicates to me that the fact that he has a new Prop[osition] 36 case, whether he’s eligible or not, does not preclude the court from violating him or sentencing him on the two other cases.”
Appellant filed a notice of appeal in propria persona from the judgment in case Nos. NA066576 and NA069124. The notice states: “This appeal follows defendant’s admission of a violation of probation. This appeal raises only matters occurring after the entry of the admission, which do not challenge the validity of the admission, to wit: [¶] That the defendant must be sentenced pursuant to Proposition 36 because his offense and basis of the current violation are non-violent drug offenses.”
On February 6, 2008, appellant’s counsel filed an ex parte motion with the superior court. Counsel sought amendment of the abstract of judgment to add two days of presentence custody credit and to reflect that the sentence on the two cases is to be served concurrently.
Appellant’s superior court file shows that the ex parte motion was granted.
From our review of the record and the applicable law, we are satisfied that appellant’s counsel has fully complied with his responsibilities, and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 123-124.) With certain exceptions, Proposition 36 provides that “any person convicted of a nonviolent drug possession offense shall receive probation.” (Pen. Code, § 1210.1, subd. (a); see 2 Witkin & Epstein, Cal. Criminal Law (2008 supp.) Crimes Against Public Peace and Welfare, § 126A, p. 189.) Appellant’s convictions in case Nos. NA066576 and NA069124 were for violating section 11366, and not for a drug possession offense, so he was ineligible for Proposition 36 sentencing. (People v. Ferrando (2004) 115 Cal.App.4th 917, 919.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J. RUBIN, J.