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People v. Rash

Court of Appeal of California
Sep 18, 2008
No. C057832 (Cal. Ct. App. Sep. 18, 2008)

Opinion

C057832

9-18-2008

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT RASH, Defendant and Appellant.

Not to be Published


In April 2005, defendant Jeffrey Scott Rash was identified in a photographic lineup after attempting to purchase beer and cigarettes using a stolen credit card. Defendant was arrested and charged in case No. CM023229 with felony second degree commercial burglary. (Pen. Code, § 459.) The amended complaint specially alleged that defendant served four prior prison terms. (Pen. Code, § 667.5, subd. (b).)

By stipulation of the parties, the commercial burglary charge was later amended to a misdemeanor.

In September 2005, police stopped defendants vehicle which displayed expired registration tags. Inside the car police discovered methamphetamine, a scale, pay/owe sheets and a plastic bag containing 66 Hydrocodone pills. Defendant was arrested and charged in case No. CM023969 with possession of Hydrocodone (Health & Saf. Code, § 11350, subd. (a); and possession of methamphetamine (§ 11377, subd. (a)). The complaint specially alleged that defendant was on bail or his own recognizance (OR) when the offenses were committed (Pen. Code, § 12022.1) and that defendant served four prior prison terms (Pen. Code, § 667.5, subd. (b)).

Hereafter, undesignated statutory references are to the Health and Safety Code.

In October 2005, police executed a search warrant at defendants residence, where they discovered methamphetamine and drug paraphernalia. Defendant was arrested and charged in case No. CM023902 with possession of methamphetamine for sale (§ 11378) and possession of methamphetamine (§ 11377, subd. (a)). The complaint specially alleged that defendant was on bail or OR when the offenses were committed (Pen. Code, § 12022.1) and that he served four prior prison terms (Pen. Code, § 667.5, subd. (b)).

Pursuant to defendants request, the court conducted a Marsden hearing, at the conclusion of which defendants request for substitution of counsel was denied.

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

Defendant entered negotiated pleas as follows: In case No. CM023229, defendant pled no contest to misdemeanor burglary; in case No. CM023902, defendant pled guilty to possession for sale of methamphetamine in exchange for an agreement of no immediate state prison, a sentencing lid of eight years and four months, and dismissal of the balance of charges and enhancements with a Harvey waiver; and, in case No. CM023969, defendant pled guilty to the possession of Hydrocodone and methamphetamine charges and admitted the prior prison term enhancements; the Penal Code section 12022.1 enhancement was dismissed in the interest of justice. With respect to case Nos. CM023902 and CM023969, defendant stipulated there were no Penal Code section 654 issues, and waived custody credits earned as of the date of entry of the plea.

A pending traffic matter (case No. NT117427) was dismissed in light of the plea agreement.

In case No. CM023969, the court suspended execution of the eight-year, four-month sentence and placed defendant on three years of Proposition 36 probation.

Defendant subsequently admitted violating probation as alleged in three separate petitions. The court terminated probation as unsuccessful and executed the previously-imposed sentence of eight years and four months in state prison, ordering defendant to pay specified fees and fines. The sentence included the upper term of three years for count 1 in case No. CM023969, plus a consecutive eight-month term for count 2 in that case, and a consecutive eight-month term for count 1 in case No. CM023902. The court cited several factors in support of its decision to impose the upper term, including defendants numerous prior convictions, and the fact that he was "released on bail in CM[0]23969 when he committed the felony in CM[0]23902."

The court also terminated probation as unsuccessful in pending case No. NCR95158, and sentenced defendant to a concurrent 90-day term. Another pending case, case No. SC56574, was dismissed in the interest of justice.

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.

We note that, in pronouncing sentence, the trial court correctly imposed eight-month terms for count 2 in case No. CM023969 and for count 1 in case No. CM023902, as mandated by section 1170.1, subdivision (a), for consecutive sentences. However, the court noted that it arrived at those terms by imposing the "upper term" of three years, "suspending" and "staying" two-thirds of those terms. Because the ultimate sentence rendered was correct, and the trial courts additional comments were mere surplusage, we direct the trial court to correct its mistake and amend the abstract of judgment striking the upper term notation as to count 2 in case No. CM023969 and count 1 in case No. CM023902 such that each of those counts reflects a consecutive one-third term of eight months.

Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment as directed in this opinion, and to deliver the amended abstract to the Department of Corrections and Rehabilitation.

We concur:

MORRISON, Acting P.J.

ROBIE, J.


Summaries of

People v. Rash

Court of Appeal of California
Sep 18, 2008
No. C057832 (Cal. Ct. App. Sep. 18, 2008)
Case details for

People v. Rash

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT RASH, Defendant and…

Court:Court of Appeal of California

Date published: Sep 18, 2008

Citations

No. C057832 (Cal. Ct. App. Sep. 18, 2008)