Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P04CRF0625
SIMS, Acting P.J.Sheriffs stopped a vehicle with expired registration. During a patdown search for weapons, defendant Gabriel Jonah Lloyd, a passenger in the car, was found to be in possession of a broken crank pipe. Defendant was taken into custody and transported to jail, where he was also found to be in possession of marijuana and methamphetamine.
The driver of the vehicle was on formal probation and subject to a search clause.
Defendant was charged by criminal complaint with bringing drugs into jail in violation of Penal Code section 4573 (count I), transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) (count II), possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) (count III), possession of marijuana in violation of Health and Safety Code section 11357, subdivision (b) (count IV), and possession of drug paraphernalia in violation of Health and Safety Code section 11364 (count V). As to count II, the complaint specially alleged that defendant had suffered three prior convictions pursuant to Health and Safety Code section 11370.2, subdivision (c).
On July 6, 2005, against the advice of his counsel, defendant entered a negotiated plea agreement whereby he pled no contest to count I and admitted two of the three prior conviction allegations (Health & Saf. Code, § 11370.2, subd. (c)) in exchange for dismissal of the remaining charges. The court sentenced defendant to an aggregate prison sentence of nine years, but suspended execution of the sentence, placing defendant on formal probation for five years and ordering that he complete a one-year drug treatment program. Defendant was also ordered to pay specified fees and fines. Defendant waived his right to appeal and agreed that, in the event he was unable to complete the one-year drug program, he would waive all credits.
According to the reporter’s transcript, defendant entered a plea of “guilty.” However, the written plea agreement signed by defendant indicates he entered a plea of “no contest.”
On August 24, 2005, the court, on its own motion, recalled the sentence, noting that it had “engaged in sentencing the defendant illegally because the [Health and Safety Code section] 11370.2 [enhancement] does not attach to a [section] 4573 [violation].” By stipulation of the parties, defendant withdrew his plea of guilty to count I and pled no contest to count II instead. The court found a factual basis for defendant’s plea and stated on the record its intention “to impose the exact same sentence [previously imposed] so that nothing will change except the particular charge to which [defendant pled].” To that end, the court again sentenced defendant to nine years in prison, but suspended execution of the sentence and placed defendant on five years formal probation, again requiring that he complete a one-year drug program.
On May 19, 2006, a petition was filed alleging defendant violated probation by (1) providing a urine sample which tested positive for “amphetamines” on May 1, 2006, (2) failing to complete the one-year drug program, and (3) testing positive for narcotics on May 11, 2006.
The May 1, 2006, dirty test allegation was subsequently dismissed.
Following numerous continuances, the probation violation hearing was held on July 13, 2007. According to defendant’s drug counselor, defendant participated in the program and progressed well, notwithstanding the fact that his participation began to drop off after approximately four months and he began missing group meetings. However, because defendant failed to show up for his final appointment as originally scheduled and as rescheduled, his counselor was unable to certify him as having completed the program.
Defendant’s probation officer also testified that defendant had been discharged from the drug program on March 20, 2006, “for noncompliance.”
Finding the allegations that defendant violated his probation true, the court terminated probation as unsuccessful and executed the previously agreed upon nine-year prison sentence, reaffirming the fees and fines previously imposed.
The court implicitly denied defendant’s motion to set aside guilty plea due to illegal sentence.
Defendant filed a timely notice of appeal.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court 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 of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., RAYE, J.