Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF04-2083
NICHOLSON, J.
On August 3, 2004, defendant Roger Dale Mitchell went to his monthly meeting with his probation officer. He appeared agitated, with shaking hands, rapid speech, and unusual sweating, so the probation officer asked if he had recently used methamphetamine. Defendant said no, and agreed to a drug test.
Defendant was driven to the appointment by another person, and the officer obtained consent from the driver to search the car. Searching the car, the officer found a clear plastic bag containing 1.42 grams of methamphetamine on the floorboard between the passenger seat where defendant had been sitting and the passenger door. Defendant’s urine tested positive for amphetamine and methamphetamine.
Defendant entered a negotiated plea of guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted to violating misdemeanor probation in an unrelated case. On September 13, 2004, the court placed defendant on Proposition 36 probation for three years.
On November 24, 2004, defendant admitted to violating his probation by twice testing positive for amphetamine and methamphetamine and the court reinstated Proposition 36 probation. On November 27, 2006, defendant admitted to violating probation after twice testing positive for amphetamine and methamphetamine and the court again reinstated Proposition 36 probation.
Defendant subsequently tested positive for methamphetamine and amphetamine three more times. At a contested probation revocation hearing, defendant sought to prove he did not violate his probation because he was taking a diet drug containing phentermine, which he claimed would cause him to falsely test positive for amphetamine and methamphetamine. According to the person who conducted the test, under the test administered on defendant, phentermine would not cause a false positive result for amphetamine and methamphetamine.
The court found defendant violated his probation and terminated probation, imposing an upper term of three years in state prison based on defendant’s extensive criminal record and awarded 68 days custody credits (46 actual and 22 conduct).
Defendant timely appealed (case No. C057474). He did not obtain a certificate of probable cause.
While the appeal was pending, defendant’s trial counsel requested the trial court to recall its sentence pursuant to Penal Code section 1170, subdivision (d), claiming defendant had been ordered to undergo residential drug treatment as part of his Proposition 36, but he had never been given the opportunity to utilize this treatment. The court denied the request, finding defendant had never been ordered to undergo residential drug treatment.
Defendant appealed this denial of the motion to recall (case No. C058528). He did not obtain a certificate of probable cause.
On appellate counsel’s motion, we consolidated the appeals in C057474 and C058528.
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, Acting P. J., HULL, J.