Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS071734A
Bamattre-Manoukian, Acting P.J.
Around 12:48 p.m. on May 12, 2007, a Seaside police officer effected a traffic stop of a gold Toyota minivan. When he contacted the minivan’s driver, defendant Robert Brown, the officer immediately smelled a strong odor of raw marijuana emitting from the minivan. Defendant admitted that there was marijuana in a black handbag on the floor next to his feet. A search of the black handbag revealed a clear plastic bag containing 3.2 grams of marijuana, a digital scale, a clear plastic bag containing 11 hydrocodone pills and two larger hydrocodone tablets, a paper bindle containing approximately 3.7 grams of powder cocaine, and 2 grams of powder cocaine folded inside a one-dollar bill. Defendant claimed the hydrocodone pills were his. A subsequent search of the minivan revealed a large quantity of illegal fireworks and a collapsible baton. Defendant later admitted that the scale and the cocaine were his, but he claimed that all the drugs were for his personal use.
There were two passengers in the minivan.
The facts are taken from the probation report.
Defendant was charged by information filed August 1, 2007, with transportation of cocaine (Health & Saf. Code, § 11352, subd. (a); count 1), possession of cocaine (§ 11350, subd. (a); count 2), transportation of hydrocodone (§ 11352, subd. (a); count 3), possession of hydrocodone (§ 11350, subd. (a); count 4), possession of a billy (Pen. Code, § 12020, subd. (a)(1); count 5), misdemeanor possession of marijuana in a vehicle (Veh. Code, § 23222, subd. (b); count 6), and misdemeanor possession of fireworks without a permit (§ 12677; count 7).
Further unspecified statutory references are to the Health and Safety Code.
On April 29, 2008, defendant appeared with appointed counsel and entered into a plea agreement whereby he entered a plea of no contest to count 1 with the stipulation that the cocaine was for personal use and with an understanding that he would receive felony probation. The court informed defendant that, after one year, he could file a petition for “a possible modification,” but that it was “taking no position on that at this time.”
The probation report states that defendant has a 1986 California felony conviction for grand theft, a 1989 North Carolina felony conviction for possession of cocaine for sale, a 1997 federal felony conviction for possession of cocaine for sale, a 1998 federal conviction for attempted possession of cocaine for distribution in prison, and a 2002 California misdemeanor conviction for resisting or obstructing an officer. Defendant has also served two prior prison terms. The probation officer noted that defendant admitted possible addiction to marijuana and the occasional use of cocaine.
On June 5, 2008, the court sentenced defendant to the middle term of four years in prison, suspended execution of the sentence, and placed defendant on probation for three years. The terms and conditions of probation included that defendant serve 365 days in county jail, but that after serving 180 days he could be placed into an appropriate residential treatment program. He would also waive all credits, except that, if he successfully completed the residential treatment program and all of its aftercare components, the time in the residential treatment program would be credited against any further jail sentence or prison commitment. The court ordered defendant to report immediately to the probation department but deferred defendant’s surrender date to July 7, 2008.
On October 1, 2008, defendant signed a written request for modification of sentence/probation. Defendant sought “To eliminate the residential treatment program, because I’m not an addict, I never used before this, I was a one time use[r,] it was said it would keep me awake while we were doing a catering job for that weekend, I have never been in court for using drugs or DUI. [¶] I need to be released to take care of my accident that happen[ed] right before I turned myself in. So I can help my family which is in [dire] need right now. If I could have a conversion to weekends so I can work and pay bills before my family gets put out. I have a wife and 4 kids; my daughter is going through a lot right now....”
The probation department submitted opposition to the request on October 15, 2008: “Based upon the circumstances of the offense and the defendant’s prior criminal record, it is felt that the sentence imposed was appropriate and should not be modified.” The court denied the request by ex parte order filed October 22, 2008.
Defendant filed a notice of appeal on January 9, 2009, which was deemed operative as to the order denying the request for modification of sentence/probation. We appointed counsel to represent defendant in this court. Counsel has filed a brief which states the case and facts but which raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The order of October 22, 2008, is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.