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People v. McDaniel

California Court of Appeals, First District, Fourth Division
Mar 13, 2008
No. A118671 (Cal. Ct. App. Mar. 13, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EZRA MCDANIEL, Defendant and Appellant. A118671 California Court of Appeal, First District, Fourth Division March 13, 2008

NOT TO BE PUBLISHED

Marin County Super. Ct. No. SC152149

Rivera, J.

Defendant Ezra McDaniel appeals a judgment entered upon a plea of guilty to possession of a controlled substance in a jail or state prison. (Pen. Code, § 4573.6) His attorney has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief, but he has not done so.

All undesignated statutory references are to the Penal Code.

Defendant was charged by first amended complaint with one count of possession of drug paraphernalia in a jail or state prison, a felony. (§ 4573.6.) The complaint also alleged three prior conviction enhancements pursuant to section 1203, subd. (e)(4). After being advised of the rights he was giving up and the consequences of his plea, he pled guilty to a violation of section 4573.6. Before making his plea, he acknowledged that he understood that unless the court found unusual circumstances, he would be sentenced to state prison pursuant to section 1203, subdivision (e)(4).

Section 1203, subdivision (e) provides in pertinent part: “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: . . . (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.”

Defendant originally pled guilty to possession of paraphernalia as charged in the first amended complaint. The probable cause statement made clear that defendant had actually possessed controlled substances, not paraphernalia. The court retook the plea, and defendant pled guilty to possession of illegal controlled substances while in state prison in violation of section 4573.6.

The probation officer’s report indicated that defendant had been working on a work crew with other inmates. A correctional officer noticed defendant reaching into his pocket. At the officer’s direction, defendant removed a bag containing 13 smaller bags of marijuana, each containing approximately .59 grams, and three smaller bags of cocaine, each containing approximately .68 grams.

The trial court did not find unusual circumstances to justify granting probation pursuant to section 1203, subdivision (e)(4). The court sentenced him to the upper term of four years, giving as its reasons the fact that defendant possessed a significant quantity of controlled substances, that he had multiple kinds of substance at the same time, that he had a prior record of felony convictions, and that he had been committed to prison.

Defendant’s counsel points out that the prison term that defendant was serving at the time of the offense was not properly an aggravating factor, since it was an element of the offense. (Cal. Rules of Court, rule 4.420(d).) However, the trial court relied on several factors to impose the upper term. One factor would have sufficed, and we see no reasonable probability that the court would alter its decision on remand. (People v. Osband (1996) 13 Cal.4th 622, 732.)

Defendant was represented by counsel. He was advised of his rights and the consequences of his plea. The sentence was consistent with the plea agreement. We find no arguable issues. However, we note that the abstract of judgment does not accurately reflect defendant’s plea. Although he pled guilty to possession of a controlled substance while incarcerated in a state prison, the abstract of judgment reflects a conviction of possession of drug paraphernalia in jail or prison. Accordingly, we shall direct the trial court to amend the abstract of judgment.

Disposition

The judgment is affirmed. The Marin County Superior Court is directed to prepare an amended abstract of judgment accurately reflecting the crime of which defendant was convicted and to forward the amended abstract of judgment to the Department of Corrections.

We concur: Ruvolo, P. J. Sepulveda, J.


Summaries of

People v. McDaniel

California Court of Appeals, First District, Fourth Division
Mar 13, 2008
No. A118671 (Cal. Ct. App. Mar. 13, 2008)
Case details for

People v. McDaniel

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EZRA MCDANIEL, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 13, 2008

Citations

No. A118671 (Cal. Ct. App. Mar. 13, 2008)