Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06CF0427, William Lee Evans, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury found defendant Jose Ayala guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury also found true allegations he had previously been convicted of the unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and street terrorism (Pen. Code, § 186.22, subd. (a)), and that he had, on two occasions, served a prison term and had not remained free of both prison custody and the commission of a felony for five years. (Pen.Code, § 667.5, subd. (b) (prison prior).)
The jury acquitted defendant of battery on a peace officer (Pen. Code, § 243, subd. (b)). The jury was unable to reach a decision on charges of possession of ammunition by a prohibited person (Pen. Code, § 12316, subd. (b)(1)), street terrorism (Pen. Code, § 186.22, subd. (a)), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364), and the court declared a mistrial as to these counts.
The court, exercising its discretion under Penal Code section 1385, struck the prior unlawful taking of a vehicle conviction and sentenced defendant to serve a state prison term of six years, comprised of double the middle term of two years and one additional year for each prison prior. Defendant timely filed a notice of appeal from the judgment.
We appointed counsel to represent defendant on appeal. Counsel filed a brief that set forth the facts. Counsel did not argue against defendant, but advised the court no issues were found to argue on defendant’s behalf and asked that we review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Defendant was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from defendant. Upon our independent review, we inquired of the parties whether an error had been committed in the calculation of defendant’s conduct custody credits. Both parties advised us that the trial court has corrected the error. We affirm the judgment.
FACTS
We recite only those facts relevant to defendant’s conviction for possession of methamphetamine, his prior strike, and his prison priors. A City of Orange police officer saw defendant walking with Michael Cooper. The officer recognized Cooper, having earlier been alerted that Cooper was wanted on an arrest warrant. Cooper made eye contact with the officer and immediately turned around and ran. The officer yelled at Cooper to stop, but he continued running away. Defendant did not run; he stood where he was. The officer asked defendant whether he was on probation or parole. Defendant responded that he was on parole. The officer asked defendant to sit on the curb, and defendant complied. The officer patted defendant down for weapons, and found a plastic baggie containing a white substance in defendant’s right front pocket. The substance was identified as 0.5 grams of methamphetamine, a usable quantity.
Defendant testified on his own behalf. On the day before his arrest, he had used methamphetamine from the same source as the substance in the baggie, although he claimed the baggie belonged to someone else. Defendant also testified that in 1998 he had pleaded guilty to driving a stolen vehicle and being an active member of a criminal street gang. Sentenced to a total state prison term of one year four months for those convictions, defendant had not been free of custody or the commission of a new felony offense for five years when he was convicted in 2003 for possession of a controlled substance, and sentenced to a state prison term of two years eight months, and he was free of custody on that offense for only two months when he committed the current offense.
DISCUSSION
As outlined above, substantial (indeed overwhelming) evidence supported defendant’s conviction for possession of methamphetamine and the findings that the criminal history allegations were true. The drug was found in defendant’s pocket, and he admitted he knew the substance was methamphetamine. The search that resulted in the discovery of the methamphetamine in defendant’s pocket was lawful because defendant admitted he was on parole when asked by the police officer. (See Pen. Code, § 3067 [inmate shall not be released on parole without written agreement to be subject to search and seizure without a warrant and with or without cause].) Defendant also admitted his prior convictions and prison terms. The court acted within its sentencing discretion by striking one strike, sentencing defendant to double the midterm for the current offense and adding two 1-year consecutive terms for the prison priors. (Pen. Code, §§ 667, subd. (e)(1), 667.5, subd. (b), 1170.12, subd. (c)(1).)
The court limited defendant’s conduct credits to 15 percent of his actual time in custody pursuant to Penal Code section 2933.1, subdivision (c). That limitation applies, however, only to the felonies listed in Penal Code section 667.5, subdivision (c), and possession of methamphetamine is not listed in that section. We asked the parties for letter briefs on the potential error in the computation of defendant’s conduct credits. We were advised by both parties the error has already been corrected by the trial court.
Our examination of the record discloses no other error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.