Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE280005, Lantz Lewis, Judge.
IRION, J.
Daniel Carlos Diaz pleaded guilty to residential burglary (Pen. Code, §§ 459, 460) (count 1), grand theft of a firearm (§ 487, subd. (d)(2)) (count 2) and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 4). At the initial sentencing hearing, over the objection of defense counsel, the court ordered a diagnostic evaluation (§ 1203.03). The resulting evaluation recommended a prison sentence rather than probation. Upon the court's receipt of the evaluation, Diaz's counsel made an oral motion to withdraw the guilty plea and for the appointment of a new attorney. The court relieved counsel, appointed new counsel and ordered new counsel to determine whether a withdrawal motion should be filed. New counsel filed a motion to withdraw the plea. At the final sentencing hearing, Diaz withdrew the motion, the court granted the People's motion to dismiss count 2 and the parties stipulated to a four-year sentence. The court sentenced Diaz to four years in prison: the four-year middle term on count 1 and a concurrent two-year middle term on count 4. Diaz appeals. We affirm.
Statutory references are to the Penal Code unless otherwise specified.
Although the court stated "[t]here's no plea agreement in this case," the court dismissed a charge in another case of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) in the interest of justice, based on the guilty plea.
BACKGROUND
On April 26, 2008, Diaz entered an inhabited dwelling with the intent to commit theft. He was in possession of a usable quantity of methamphetamine and knew it was methamphetamine. The burglary victim was a law enforcement officer.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as a possible but not arguable issue, whether the court abused its discretion by refusing to grant probation at the first sentencing hearing.
We granted Diaz permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Diaz has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.AARON, J.