Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR182601
McGuiness, P. J.
Following a jury trial, appellant Anthony Hunter was convicted of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)), for which he received the low term of three years in state prison. Appellant’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.
Factual and Procedural Background
During the period from approximately August 2005 until January 2006, officers from the Vallejo Police Department, assisted by detective Lionel Dozier of the Berkeley Police Department, conducted a “buy-walk” drug operation in which Dozier operated undercover and sought to purchase drugs on the street. In order to protect Dozier’s undercover identity, no arrests were made until after the operation concluded in January 2006.
On September 21, 2005, as part of the buy-walk drug operation, detective William Badour of the Vallejo Police Department provided premarked money to Dozier and fitted him with a body wire. Badour dropped Dozier off at a street corner in Vallejo at about 7:30 p.m.
As Badour watched and listened, two Black males, one of whom was appellant, approached Dozier on the street. Dozier asked appellant if he had a “dove,” which is street slang for $20 worth of crack cocaine. Appellant spit rocks from his mouth and gave them to the second man, identified as Homer Abbitt (also referred to as “Mr. Abbott”). Abbitt placed the rocks, which were in small plastic baggies, on top of a ledge. Appellant and Abbitt walked away. Then, Dozier took the cocaine rocks and placed $20 on the ledge. Dozier gave the “bust” signal and put out a description of the two men. Dozier had received two rocks of cocaine base weighing .6 grams.
Dozier returned to Badour’s vehicle and identified the two men who had sold the cocaine base. Badour followed appellant and Abbitt, who were at that point accompanied by a female. After the three individuals got into a vehicle and drove away, another officer, Jerome Bautista, was instructed to pull them over for a vehicle infraction. Officer Bautista stopped the vehicle for an expired vehicle registration. Appellant was driving the vehicle. After none of the people in the vehicle was able to produce identification, Bautista had them exit the vehicle and sit on the sidewalk, where he took photographs of them. Bautista searched the individuals and found on Abbitt one of the premarked $20 bills that had been given to detective Dozier. Bautista allowed them to leave after about five minutes. No arrest was made at that time, and the officer gave no indication that they were pulled over as a result of the drug transaction with detective Dozier.
On September 25, 2005, four days after the transaction that gave rise to the charges in this case, appellant was arrested in an unrelated matter. Following his arrest, appellant pleaded no contest on November 8, 2005, to a charge of unlawfully possessing a controlled substance while being armed with a loaded firearm. (Health & Saf. Code, § 11370.1.) At sentencing on January 17, 2006, the court placed appellant on probation and sentenced him to serve one year in county jail as a result of his conviction for violating Health and Safety Code section 11370.1.
The felony complaint in this case was filed on February 9, 2006, at which time the district attorney sought a warrant for appellant’s arrest. In the complaint, the district attorney alleged a single count of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). Appellant was arraigned on the complaint on April 18, 2006. He entered a plea of not guilty.
The trial court conducted a preliminary hearing on August 29, 2006. After hearing testimony from detective Badour, the court found probable cause to hold appellant over for trial on the alleged violation of Health and Safety Code section 11352, subdivision (a). An information filed on September 6, 2006, charged appellant with a single count of selling cocaine base.
Appellant filed a motion to dismiss, alleging a violation of his right to a speedy trial. Appellant contended that he had appeared before the court at least 10 times during the period from September 2005 through January 2006 in connection with the case in which he was convicted of violating Health and Safety Code section 11370.1. According to appellant, at no time during that period was it ever mentioned that charges might be filed against him in the instant case. By the time the district attorney filed the complaint in this matter, on February 9, 2006, it was too late for appellant to seek concurrent sentencing under Penal Code section 1381. Appellant claimed he suffered substantial prejudice as a result of his inability to seek concurrent sentencing in his two cases. Appellant also claimed that, as a result of the delay, he was unable to locate the female who had been a passenger in their vehicle when they were stopped by officer Bautista on September 21, 2005. He argued that she could have provided exculpatory evidence.
The court heard appellant’s motion to dismiss on February 5, 2007. Detective Badour testified at the hearing and explained that the delay in charging appellant resulted from the need to protect the undercover identity of the officer who was assisting in the buy-walk drug operation, which lasted from August 2005 through the middle of January 2006. He also testified, along with Detective Dozier, that the female who had accompanied appellant and Abbitt in the vehicle was not present at the time of the drug transaction. The district attorney offered to make concurrent sentencing an option for appellant, so that he would suffer no prejudice as a result of the delay in filing the charges in this case. The district attorney also argued that appellant had failed to establish any prejudice as a result of his inability to locate the female witness, who had not been present during the drug transaction. At the conclusion of the hearing, the court denied the motion to dismiss.
In fact, following his conviction in this case, appellant did receive a concurrent sentence on his conviction for violating Health and Safety Code section 11370.1, subdivision (a).
The matter proceeded to a jury trial on March 21, 2007. On March 22, 2007, the jury returned a guilty verdict on the single, charged count of selling cocaine base. (Health & Saf. Code, § 11350, subd. (a).)
On April 27, 2007, the court ordered that appellant be placed in a diagnostic facility pursuant to Penal Code section 1203.03 for purposes of providing a recommendation and diagnosis. In a May 29, 2007, evaluation prepared by the California Department of Corrections and Rehabilitation, it was recommended that appellant be committed to state prison. Among other things, the evaluation noted appellant had an extensive criminal record, his criminal behavior had escalated to an “unmanageable situation,” he had performed poorly on probation, and he had a serious substance abuse problem that had not been addressed.
On August 1, 2007, the trial court denied probation and sentenced appellant to the low term of three years in state prison for the violation of Health and Safety Code section 11350, subdivision (a). Appellant received a concurrent sentence of two years on his earlier conviction for violating Health and Safety Code section 11370.1. The court imposed a restitution fine of $500 pursuant to Penal Code section 1202.4, subdivision (b), and it imposed a parole revocation fine of $500 pursuant to Penal Code section 1202.45, which it suspended unless parole is revoked. Appellant received 409 days of presentence credit, composed of 273 actual days served plus 136 days for work and good-time credits. (Pen. Code, § 4019.) Appellant filed a timely notice of appeal on August 15, 2007.
Discussion
Appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so. We have reviewed the entire record and conclude no issue warrants further briefing.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.