Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA055952, Martin Herscovitz, Judge.
Tracy A. Rodgers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZELON, J.
This case comes before us a second time. Defendant was convicted by jury of possession of cocaine and transportation of cocaine, after which he was denied probation and sentenced to state prison for 10 years (double the five-year upper term under the “Three Strikes” law) for transportation of cocaine (count 2). His sentence for the lesser included offense of possession of cocaine (count 1) was imposed and stayed under section 654. The issue of defendant’s eligibility for probation and drug treatment under Proposition 36 was never mentioned by either party or the court at sentencing.
In his first appeal, defendant successfully argued the trial court erred in failing to consider his eligibility for sentencing under Penal Code section 1210.1 (“Proposition 36”). (People v. Sanchez (Apr. 14, 2010, B213641) [unpub. opn.].) Accordingly, we ordered his sentence reversed and the case remanded for resentencing. (Ibid.)
Statutory references are to the Penal Code, unless otherwise indicated.
Following the issuance of the remittitur, the trial court conducted a new sentencing hearing, and properly advised defendant that he bore the burden of proving his possession or transportation of cocaine was for personal use, to obtain the benefits of Proposition 36. (See People v. Dove (2004) 124 Cal.App.4th 1, 10.) Defendant declined to present any evidence, and both parties submitted the issue on the trial evidence.
The trial court concluded defendant had failed to satisfy the requisite burden of proof and was therefore ineligible for the benefits of Proposition 36.
The trial court reimposed its original sentence of 10 years (the five-year upper term doubled under the Three Strikes law) for transportation of cocaine (count 2) and stayed the sentence for possession of cocaine (count 1) pursuant to section 654.
Defendant timely appealed, and we appointed counsel to represent him on appeal. After examination of the record counsel filed an opening brief in which no issues were raised. On February 1, 2011, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.
We have examined the entire record and are satisfied defendant’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.