Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. CH-40685
NEEDHAM, J.
Appellant Jermaine Copes pled no contest to possessing cocaine base for sale and was placed on felony probation. (Health & Saf. Code, § 11351.5.) His probation was revoked and he was sentenced to prison for the four-year upper term based on his subsequent arrest for drug possession. In this appeal from the order revoking probation, court-appointed counsel has briefed no issues, but has asked this court to independently review the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
I. BACKGROUND
On July 6, 2005, Hayward police officers went to the Islander Motel after the desk clerk there reported an altercation in appellant’s room. During a patdown search of appellant, they discovered a plastic bag containing 19 individually wrapped pieces of rock cocaine. Appellant attempted to flee, but was eventually subdued and taken into custody. He was charged with possessing cocaine base and resisting arrest (Pen. Code, § 69) and, on April 6, 2006, pled no contest to the former charge. The court placed him on felony probation for five years.
On November 7, 2006, appellant was stopped while driving a car that did not have a front license plate. A records check revealed that he had an outstanding warrant. The officers arrested appellant, conducted a search of the car, and discovered what appeared to be methamphetamine. Appellant was arrested and taken to jail, where the officers found a rock of cocaine in the patrol car seat where he had been sitting. Marijuana was found in appellant’s pants pocket and 40 more rocks of cocaine were found inside the pocket of a black jacket he was wearing.
A petition to revoke appellant’s probation was filed on the basis of this drug possession and a contested hearing commenced July 26, 2007. Appellant’s girlfriend testified that she had purchased the drugs found on appellant and had hidden them in the car he was driving that night. She tried to text message appellant about the drugs when she found out he had left their motel room, but was unable to reach him. Appellant testified that he had seen the marijuana in the car door when he stopped for gas, and had put it in his pants pocket. He had found the jacket he was wearing inside the car, and had put it on without noticing the drugs in its pocket.
The trial court revoked appellant’s probation and sentenced him to prison for the four-year upper term, finding as a circumstance in aggravation that appellant’s crimes were of increasing seriousness. Petitions alleging that appellant had violated his probation on other occasions were withdrawn by the prosecution.
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende brief raising no issues, that counsel and this court have advised appellant of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and, as discussed below, find none.
When he entered his no contest plea, appellant was properly advised of his constitutional rights to a jury trial, to confront the witnesses against him, and to not incriminate himself. The court initially granted probation as called for by the plea agreement. His probation revocation followed a contested hearing that comported with due process. (See People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198-1199.) It was predicated on the trial court’s finding—supported by substantial evidence—that appellant had committed a new offense while on probation. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161-1162.) The upper term sentence imposed by the trial court was based on appellant’s prior criminal history, and did not violate the principles of Cunningham v. California (2007) 127 S.Ct. 856. (See People v. Black (2007) 41 Cal.4th 799, 818-820.) Moreover, as part of his plea agreement, appellant specifically waived his right to a jury trial “as to any sentencing factors that may be used to increase [his] sentence on any count, sentencing enhancement, or allegation to the upper or maximum term provided by law.”
III. DISPOSITION
The judgment is affirmed.
We concur.JONES, P. J., SIMONS, J.