Opinion
A113798
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. KENNETH PARKER, Defendant and Appellant.
Counsel for appellant Kenneth Parker (appellant) has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.
An information was filed in case number VCR 167010 on July 29, 2003, by the Solano County District Attorney charging appellant with one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and one count of possession of a smoking device (§ 11364).
Appellant pleaded guilty on August 8, 2003, to one count of possession of a controlled substance in return for which the prosecution agreed to a deferred entry of judgment. Appellant acknowledged that the maximum penalty which could be imposed was three years in state prison. Probation was revoked for positive drug testing and later reinstated during July 2005.
A felony complaint was filed on September 15, 2005, in case number VCR 180314, charging appellant with one count of possession of a controlled substance (cocaine) (§ 11350, subd. (a)), one count of possession of a controlled substance (methamphetamine) (§ 11377, subd. (a)), and one count of possession of a smoking device (§ 11364). The filing of this complaint was also the occasion for the filing of a request to revoke probation in case number VCR 167010.
Appellant pleaded no contest to one count of possession of a controlled substance in case number VCR 180314 on October 6, 2005, in return for which the two remaining counts were dismissed and it was stipulated appellant was eligible for Proposition 36 diversion. Three years probation was granted as to this second case. Probation was first revoked and then reinstated in case number VCR 167010, after appellant admitted a second non-drug offense (failure to appear in case number VCR 167010).
On January 6, 2006, appellant admitted third and fourth drug violations in case number VCR 167010, and his first and second drug violations in case number VCR 180314. In doing so, appellant acknowledged that his probation in both cases could be revoked and he could be sentenced to a combined maximum of three years eight months in state prison. As a result of this admission, appellants diversion program was ordered terminated.
A supplemental report was submitted by the probation department for purposes of sentencing on May 4, 2006. That report chronicled unsuccessful efforts made by appellant, with the assistance of the probation department, to control appellants substance abuse through the utilization of both outpatient (2) and residential (3) programs. The report concluded that further efforts were unjustified by the lack of progress, and a state prison sentence was recommended.
At sentencing, after listening to the arguments of counsel, the court terminated probation, and sentenced appellant to the midterm of two years state prison in case number VCR 180314 with total custody credits of 133 days awarded. A concurrent two-year prison sentence was imposed for the conviction in case number VCR 167010. A $200 restitution fine was imposed pursuant to Penal Code section 1202.4, subdivision (b), and another $200 parole revocation fine under Penal Code section 1202.45 was stayed.
We discern no error in the courts handling of either case, or in sentencing. The revocation of probation, the refusal to grant a new term of probation, and the sentencing choice made by the trial court were supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel. Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.
DISPOSITION
The judgment is affirmed.
We concur:
SEPULVEDA, J.
RIVERA, J. --------------- Notes: All subsequent undesignated statutory references are to the Health and Safety Code.