Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 05-061630-0
Jones, P.J.
David Dickens appeals his conviction of possessing cocaine base for sale. (Health & Saf. Code, § 11351.5.) He also admitted a prior conviction for violation of section 11352. Defendant’s court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel also advised appellant in writing that a Wende brief was being filed and that appellant was entitled to file his own statement identifying any issues he wanted to call to the court’s attention. Appellant has declined to file any such statement. (See People v. Kelly (2006) 40 Cal.4th 106.)
All further section references are to the Health and Safety Code.
BACKGROUND
The facts are taken from the preliminary hearing, appellant’s motion to suppress (Pen. Code, § 1538.5), and the presentence report. San Pablo Police Officer Alex Caine, in uniform and in a marked patrol car, stopped a silver Buick for making an illegal left turn against a red light. The driver was unable to provide the car’s registration, proof of insurance, or written identification, although he identified himself orally. Officer Caine smelled marijuana, which he had smelled many times previously, emanating from the Buick. After removing the driver, who told Caine he was on parole for a weapons violation, and searching him for weapons and identification, Caine contacted appellant, the front seat passenger. Appellant appeared intoxicated. He had no written identification, but he provided Caine his name and date of birth orally. As Caine returned to his patrol car to run a computer check on appellant, he observed appellant lean toward the center console of the Buick and start to push something into the center console. Caine returned to the Buick and asked appellant if he had any weapons or contraband on his person. He denied having any and agreed to a search of his person. Caine found base cocaine and a “wad” of cash in his pocket. Searching the car, Caine found a plastic bag containing chunks of cocaine base between the front passenger seat and the center console and in the trunk.
Appellant was charged with possession of cocaine base for sale (§ 11351.5; count one) and possessing a controlled substance (§ 11350, subd. (a); count two). The information also alleged a three-year enhancement for a prior cocaine-related felony conviction (§ 11370.2, subd. (a)) and probation ineligibility due to prior convictions (Pen. Code, §§ 1203, subd. (e)(4), 1203.07, subd. (a)(11), 1203.073, subd. (b)(1)). After appellant’s motion to suppress was denied, appellant pled no contest to one count of possession of cocaine base for sale and admitted a prior conviction enhancement, pursuant to a negotiated disposition. He was sentenced to the midterm of four years on the possession charge, plus a one-year enhancement for a prior felony conviction (Pen. Code, § 667.5, subd. (b)), for a total sentence of five years.
DISCUSSION
Appellant was represented by counsel throughout the proceedings. The court did not err in denying his motion to suppress. He was apprised of his constitutional rights and the consequences of his plea. He expressly waived his rights, and his waiver was knowing, intelligent and voluntary. The record discloses a factual basis for his plea to the charge and to the enhancement. His sentence comported with applicable law and his plea agreement that he would receive a one-year enhancement only, not the three-year enhancement as charged in the information. Custody credits were calculated accurately, and appellant received a fair hearing and due process.
We note a clerical error in the abstract of judgment. At sentencing the court ordered a restitution fine of $1,000 and imposed and suspended a parole revocation fine in the same amount. However, the abstract of judgment identifies the restitution fine and the suspended parole revocation fine as $5,000. We will direct a correction.
DISPOSITION
The case is remanded with directions to modify the abstract of judgment to reflect a restitution fine and suspended parole revocation fine of $1,000 each and to forward a copy of the corrected abstract to the Department of Corrections. As so modified the judgment is affirmed.
We concur: Simons, J., Needham, J.