Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC828514.
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Michael Christopher Lopes pleaded no contest to one felony count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and two misdemeanor counts, using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and resisting arrest (Pen. Code, § 148, subd. (a)(1).) He also admitted the allegations that he had one prior serious or violent felony conviction within the meaning of the Three Strikes law (§§ 667, subd. (b)-(i); 1170.12, subd. (c)) and had served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of two years four months in the state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide “a brief description of the... procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the May 8, 2009 probation report, the incident that led to defendant’s arrest occurred on December 16, 2008. While defendant was sitting in a parked car, police officers approached him in connection with outstanding arrest warrants. As they did so, they noticed the odor of marijuana coming from the car and observed defendant to have symptoms of being under the influence of a stimulant. The police officers told defendant to get out of his car because they were going to arrest him.
On February 26, 2010, this court granted appellant’s request to take judicial notice of the record in defendant’s prior appeal, H034319, People v. Lopes, which was dismissed on September 10, 2009, at defendant’s request. We have taken some of the background information from the record in the prior appeal.
The police officers then attempted to handcuff defendant, who pulled away and fled on foot. As he was fleeing, defendant failed to comply with the officers’ commands to stop. At one point, defendant turned towards the officers and “squared off.” Because the officers were concerned that defendant had a weapon, they used a Taser on him. When defendant again failed to comply with the officers’ directions, they used the Taser a second time to subdue him. Defendant was then arrested.
The police officers searched defendant’s car incident to his arrest and because he was on probation with a search condition. They recovered a black case containing five bindles of methamphetamine, a methamphetamine pipe with residue, a marijuana pipe with residue, and a cell phone with a message indicating an offer to sell drugs. Defendant told the police that he had fled because he did not want to go back to jail.
The information filed on January 8, 2009, charged defendant with one felony count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and two misdemeanor counts, using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2) and resisting arrest (§ 148, subd. (a)(1); count 3). The information also alleged that defendant had one prior serious or violent felony conviction within the meaning of the Three Strikes law (§§ 667, subd. (b)-(i); 1170.12, subd. (c)) and had served one prior prison term (§ 667.5, subd. (b)).
On March 4, 2009, defendant pleaded no contest to all three counts and admitted the special allegations in exchange for a promise that his sentence would not exceed 32 months in state prison. At the sentencing hearing held on May 8, 2009, the trial court denied defendant’s Romero motion and imposed a total term of 32 months, which the court calculated by doubling the lower term of 16 months on count 1 (Health & Saf. Code, § 11378), pursuant to the Three Strikes law, and striking the prison prior enhancement (§ 667.5, subd. (b)).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Subsequently, on September 3, 2009, the trial court issued an order recalling the sentence in response to a letter from defense counsel dated August 24, 2009. In the letter, defense counsel asserted that the prior strike conviction for discharge of a firearm with gross negligence (§ 246.3), which defendant had admitted, should not have counted as a strike and therefore the matter should be recalled for reconsideration of sentencing. According to defense counsel, the record of the prior conviction did not contain proof that defendant had personally used a firearm.
On October 16, 2009, a court trial was held on the issue of whether the prior conviction for violating section 246.3 qualified as a strike conviction. After reviewing the record of the prior conviction, determining that the probation report could not be considered, and hearing the argument of counsel, the trial court found that the district attorney had not satisfied the People’s burden of proof “to show that this was a prior strike conviction.”
A resentencing hearing was held on October 22, 2009. At that time, the trial court imposed a total term of two years four months, which included the lower term of 16 months on count 1 (Health & Saf. Code, § 11378) and a consecutive one-year term for the prison prior enhancement (Pen. Code, § 667.5, subd. (b)).
After defendant filed a timely notice of appeal on October 30, 2009, defense counsel filed a letter on December 7, 2009, requesting that the trial court correct an error in the calculation of credits. Specifically, defense counsel stated that the trial court’s original sentencing order had correctly included 72 local conduct credits, while the resentencing order had erroneously included 90 local conduct credits. Defense counsel asked that the abstract of judgment be corrected to reflect 72 days of local conduct credits, pursuant to People v. Buckhalter (2001) 26 Cal.4th 20, 37. The trial court corrected the error, as stated in the December 12, 2009 minute order, and an amended abstract of judgment was prepared on December 18, 2009.
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.