Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026235
SCOTLAND , P.J.
On February 14, 2004, defendant Ryan Lee Elderkin purchased a large amount of ephedrine for the purpose of making methamphetamine. He entered a negotiated plea of no contest to possessing ephedrine with the intent to manufacture methamphetamine, and was sentenced to a stipulated upper term of six years with a referral to the California Rehabilitation Center (CRC). (Case No. CM020756.) As part of the plea agreement, he was told that if he were rejected by CRC, he would be committed to the Department of Corrections and Rehabilitation to serve the six-year term.
After he was paroled from CRC, during which he remained in the constructive custody of CRC, defendant failed to stop for a marked patrol car operating an emergency light and siren and was found to have methamphetamine. He entered a negotiated plea of no contest to possessing methamphetamine, was sentenced to a stipulated upper term of three years in state prison, and was ordered to pay various fines and fees. (Case No. CM026235.)
Upon his commitment to state prison in case No. CM026235, defendant was excluded from CRC (case No. CM020756) because of his “dual status.”
Consequently, the trial court recalled defendant’s sentence in case No. CM026235 and resentenced him in both cases. (Pen. Code, § 1170, subd. (d).)
The trial court declared the offense in case No. CM020756 (possessing ephedrine with the intent to manufacture methamphetamine) to be the principal term and sentenced defendant to the stipulated upper term of six years, imposed a consecutive term of eight months for the offense in case No. CM026235 (possessing methamphetamine), and ordered him to pay various fines and fees. Defendant was awarded 14 days of credit in case No. CM026235 and 608 days of credits (99 days of actual custody in local confinement, 40 days of good conduct credit for local confinement, and 469 days of actual custody in state prison prior to resentencing) in case No. CM020756.
Defendant appealed and obtained a certificate of probable cause. (Pen. Code, § 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an independent examination of the record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: HULL , J. CANTIL-SAKAUYE , J.