Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR913290-A
NEEDHAM, J.
Darren Todd Phillips (Phillips) appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest to a violation of Health and Safety Code section 11359. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
On March 14, 2008, Phillips waived his right to a preliminary examination in a written form signed by Phillips and his attorney. On April 3, 2008, an information charged Phillips with one felony count of cultivating marijuana (Health & Saf. Code, § 11358), one felony count of transporting marijuana (§ 11360, subd. (a)), and one felony count of possessing marijuana for sale (§ 11359).
Except where otherwise indicated, all statutory references are to the Health and Safety Code.
Phillips entered into a plea agreement by which he would plead no contest to count three (§ 11359). The plea was “open,” with an understanding that the maximum sentence would be three years. In exchange, the remaining counts in the information would be dismissed. Phillips acknowledged and waived his constitutional rights, as stated in the plea form. (See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.) He was represented by counsel, who also signed the plea form.
At the ensuing hearing, Phillips, represented by counsel, entered a no contest plea to the possession for sale count (§ 11359), pursuant to the plea agreement. The court found that Phillips understood and freely waived his constitutional rights. The parties stipulated to, and the court accepted, the following factual basis for his no contest plea, as read into the record by Phillips’ attorney: “[Phillips’] vehicle was broken down... by Highway 20 and Route 53, officers approached. [Phillips] was on searchable – had some search conditions, and a number of marijuana plants were found in the back of his vehicle.... The plants amounted to 30 pounds; however, they were whole, uprooted plants, including the [stalk] and all the rest of what the cannabis plant consists of. [Phillips] made a statement that he had a connection with the marijuana and that he was going to – he was waiting for a call from someone to deliver the marijuana to some other individuals for, and that he would get a portion of any consideration that might ensue.” [sic]
On the district attorney’s motion, in accord with the parties’ agreement, the court dismissed the remaining counts subject to a waiver under People v. Harvey (1979) 25 Cal.3d 754.
Before sentencing, the probation department informed the court that Phillips had pled guilty to a misdemeanor violation of Penal Code section 422 (criminal threat) in Mendocino County Superior Court and had been sentenced to 180 days in county jail. His jail commitment in that case was set to expire on March 21, 2009. The probation department stated: “Consequently, [Phillips] will not be eligible for any further pre-sentence credits until after that date. Further, because there is no spatial relationship between the cases in the different counties, consecutive sentencing would be recommended [in the instant matter].”
The probation department subsequently filed a felony pre-sentence report on October 27, 2008, in which it recommended probation and a “substantial period of incarceration.”
At the sentencing hearing on October 27, 2008, Phillips was represented by counsel. The trial court denied probation, because Phillips was an active participant in the crime, the manner in which he carried out the crime demonstrated criminal sophistication and planning, his prior convictions were numerous, his prior performance on probation was poor, there was a high unlikelihood that he would satisfactorily fulfill the conditions of probation, and there was a moderate to high likelihood that he would constitute a danger to others if not imprisoned. Among other things, the court stated: “I counted twelve prior misdemeanor convictions and a prior felony conviction. I agree with the district attorney that he’s been on numerous grants of probation. His prior performance on probation has been poor. In fact, he was on two grants of misdemeanor probation out of Mendocino County when this offense was committed.”
The court imposed the mid-term sentence of two years in state prison, as defense counsel requested. The court further ordered that the sentence be served consecutively with the commitment Phillips was serving in Mendocino County. The court explained: “... [T]his case and [the Mendocino County] case are certainly independent of one another. The case in Mendocino evidently involved a separate act of violence or potential violence as it is a 422 conviction. This case did not involve an act of violence. But the crimes were committed at separate times and – different times and separate places, and do not constitute a single period of aberrant behavior. This case should run consecutive to the Mendocino case.”
The court imposed a $400 restitution fine (Pen. Code, § 1202.4, subd. (b)), a criminal justice administrative fee of $90 (Gov. Code, § 29550, subd. (c)), and a $20 court security fee (Pen. Code, § 1465.8). The court stayed imposition of a $400 parole revocation fine (Pen. Code, § 1202.45). The court ordered that Phillips “receive credits under 2900.5 of 14 days and that he receive credits under 4019(b) and (c) of three days each for an aggregate total credit of 20 days.” Neither Phillips nor his counsel objected to the calculation of credits at the hearing.
This appeal followed.
II. DISCUSSION
Phillips’ appellate counsel represented in the opening brief in this appeal that he wrote to Phillips at his last known address and advised him of the filing of a Wende brief and his opportunity to file his own supplemental brief within 30 days. We have not received any supplemental submission from Phillips.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J, SIMONS, J.