Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 07CF3355, Ronald E. Klar, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury found defendant Cesar Joel Baires guilty of possessing methamphetamine and selling, offering to sell, transporting, or attempting to transport methamphetamine. Defendant pled guilty to driving without a license. The trial court found defendant was ineligible for Proposition 36, concluded he was not suitable for probation, and sentenced him to two years in prison.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider as a possible issue whether the trial court abused its discretion in determining defendant was not suitable for probation.
On September 8, 2008, this court provided defendant with 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
We have examined the entire record and counsel’s Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Statement of Facts and Procedural History
Just after midnight on October 8, 2007, Santa Ana police officers, Corporal Brett Nelson and Officer Pete Picone, noticed a vehicle driven by defendant stopped at a red light. The vehicle had a broken license plate lamp, and the front passenger was not wearing a seat belt. The officers initiated a traffic stop.
Defendant could be seen moving around in his seat, and when he failed to heed Corporal Nelson’s command that he show his hands, another officer removed defendant from the vehicle and handcuffed him. Defendant was placed under arrest for driving with a suspended license, and transported to the detention center. Corporal Nelson observed defendant “fidgeting side to side” in his seat in the back of the patrol car during the drive to the detention center.
When defendant was removed from the patrol car at the detention center, he was holding a clear plastic baggie containing a crystal-like substance. There was a small amount of the same substance on the backseat of the patrol car. A presumptive test for amphetamine was positive. There was nothing on the backseat of the patrol car at the start of that afternoon’s shift.
Defendant asked Corporal Nelson what he was being booked for, and Nelson responded that initially defendant had been arrested for driving with a suspended license, but because of the narcotics found in the patrol car, defendant was also being booked for possession of methamphetamine for sale and transportation. Defendant voluntarily responded: “[S]ales? I don’t even use. You’re going to tell me that’s possession for sales. Good luck.” He was read his rights under Miranda v. Arizona (1966) 384 U.S. 436. Defendant acknowledged he understood his rights, and said, “[n]o” when asked if he wanted to speak with Corporal Nelson. Defendant then said, spontaneously, “that’s not enough for sales. It’s for personal use.”
At trial, the parties stipulated the substance recovered was methamphetamine, with a net weight of 6.901 grams.
Defendant admitted at trial that he had been a methamphetamine addict for 15 years. He supported his habit through a job plastering swimming pools. After being convicted of methamphetamine possession in 1995, defendant was sent to a substance abuse program, but was unsuccessful and started using methamphetamine again. He served four months in jail after being convicted of possession of methamphetamine in 1998. In 2004, he tested positive for methamphetamine, resulting in an arrest for violation of probation. In 2006, he was arrested for possessing a methamphetamine pipe.
Defendant also admitted at trial the methamphetamine found after his arrest belonged to him. He claimed he had bought $300 worth of methamphetamine just before his arrest. He testified the methamphetamine was for his personal use, and he did not intend to give or sell it to anyone.
Before trial, defendant pled guilty to driving without a valid license. (Veh. Code, § 12500, subd. (a).) Defendant was convicted by a jury of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and selling, offering to sell, transporting, or attempting to transport methamphetamine (id., § 11379, subd. (a)).
Defendant was initially charged with driving with a suspended license. (Veh. Code, § 14601.1, subd. (a).) That charge was dismissed because the license defendant proffered when arrested was not his.
The information charged defendant with possession for sale of methamphetamine. (Health & Saf. Code, § 11378.) The jury convicted defendant of the lesser included offense of possession.
The trial court found defendant was ineligible for Proposition 36 and not suitable for probation. The court then sentenced defendant to the low term of two years in state prison on the charge of selling, offering to sell, transporting, or attempting to transport methamphetamine. Sentence on the possession charge was stayed pursuant to Penal Code section 654. On the charge of driving without a valid license, the court stayed imposition of the sentence pending completion of the two-year prison term, and ordered the sentence be permanently stayed at that point. Defendant received a total of 270 days of custody credits. Defendant timely appealed.
Analysis of Potential Issues
Appointed counsel suggested we consider the following possible issue: “Whether the court abused its discretion when it found appellant was not suitable for probation and instead imposed the low term in state prison?”
The trial court has broad discretion to determine whether a defendant is suitable for probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) In deciding whether to grant or deny probation, the trial court considers facts relating to the crime and to the defendant. (Cal. Rules of Court, rule 4.414.)
In this case, the trial court made the following statement on the record at defendant’s sentencing hearing: “My sentencing is based on the totality of the circumstances, the facts of the case, obviously, the circumstances of the case, and also the circumstances related to the defendant per the court rules. [¶] I do not find this defendant is amenable to probation. I don’t think it’s a probation case. I don’t think probation is appropriate. I think he’s utilized, on a number of occasions, probation for felony matters, three specifically that I can recall. And [at] least one where i[t] wasn’t even completed successfully, and the P[enal] C[ode section] 1210 also not completed successfully. [¶] There’s numerous prior convictions that he has had unrelated to drug use, at least on the face of it, charges of receiving stolen property, domestic violence, and that’s in addition to the particular drug convictions. It’s just numerous, and I don’t know that this person would benefit from probation.”
In view of defendant’s record, as described by the trial court, the court’s decision to deny probation and sentence defendant to the low-term prison sentence was a proper exercise of its discretion.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., MOORE, J.