Opinion
F042211.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SHAWN ROBERTS, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On or about October 7, 2002, an amended information was filed in the Superior Court of Tulare County charging appellant Michael Shawn Roberts with counts I and IV, possession of cocaine base for sale (Health & Saf. Code, § 11351.5); counts II and V, possession of methamphetamine for sale (§ 11378); count III, possession of ammunition by one prohibited from owning a firearm (Pen. Code, § 12316, subd. (b)(1)); count VI, possession of cocaine (§ 11350, subd. (a)); and count VII, misdemeanor possession of paraphernalia (& sect; 11364). As to each count, it was alleged appellant served two prior prison terms (Pen. Code, § 667.5, subd. (b)). As to counts I, II, IV, and V, it was further alleged appellant suffered two prior controlled substance convictions (§ 11370.2, subd. (a)).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On the same day, appellant pleaded no contest to the charged offenses and admitted the special allegations, pursuant to a negotiated disposition with the maximum possible prison term of seven years.
On December 10, 2002, the court denied appellants motion to withdraw his no contest pleas. The court denied probation and imposed the midterm of four years for count I, possession of cocaine base for sale, with an additional three-year term for the prior controlled substance conviction, for an aggregate term of seven years. The court imposed concurrent midterms of two years for counts II, III, V, and VI, a concurrent midterm of four years for count IV, and a concurrent term of 180 days for the misdemeanor count. Appellant was awarded 336 days of presentence credits. The court ordered appellant to register as a narcotics offender (§ 11590); ordered him to participate in a counseling or education program having a substance abuse component while imprisoned (Pen. Code, § 1203.096); imposed a $ 200 restitution fine (Pen. Code, § 1202.4, subd. (b)); and imposed another $ 200 restitution fine (Pen. Code, § 1202.45), but stayed payment of that fine subject to the successful completion of parole.
On January 10, 2003, appellant filed a timely notice of appeal.
By letter dated March 13, 2003, appellants appointed appellate counsel informed the trial court that it failed to dismiss the remaining special allegations pursuant to the negotiated disposition, and requested an amended abstract of judgment.
On April 21, 2003, the trial court issued a minute order, which amended the minute order of December 10, 2002, to state that the court dismissed the two prior prison term enhancements and the remaining prior controlled substance conviction enhancement, pursuant to Penal Code section 1385.
FACTS
At 10:00 a.m. on January 22, 2002, Visalia Police Officer Kevin Grant executed a search warrant at a residence on Northeast Second Street in Visalia, and contacted appellant Michael Roberts. Officer Grant determined appellant lived at the residence. Officer Grant searched the residence and found two boxes of ammunition in the kitchen. One box contained 43 live rounds of Winchester .380-caliber ammunition, and the other contained 36 live rounds of Remington .380-caliber ammunition. In a top kitchen cabinet, Officer Grant found a scale with white residue on it, a box of plastic sandwich bags, two razor blades with white residue on them, a glass vial containing white residue, a butane torch and butane lighter, and a clear plastic bag containing a small amount of a green leafy substance. In the bedroom, Officer Grant found $ 825 on a dresser, which was bundled together with a rubber band. He also found more live .380-caliber ammunition, a $ 50 money order, and a pager under the bed.
The facts are taken from the preliminary hearing and probation report.
Officer Grant searched a black vehicle which was parked in the carport. Officer Grant found a black leather zipper bag in the vehicles locked trunk. The leather bag contained separately-packaged baggies of narcotics: 3.99 grams of cocaine base, 0.72 grams of methamphetamine, and 6.67 grams of marijuana. There were also two smoking pipes in the trunk.
Officer Grant determined the vehicle was owned by the parents of appellants wife, but appellant had a set of keys to the car. Appellants wife stated she lived in the residence with appellant, and they used the black vehicle. Appellant initially stated he didnt know about the drugs found in the black vehicle, but later admitted he sold narcotics, and the drugs and ammunition belonged to him.
At 11:30 a.m. on March 12, 2002, Officer Grant and other officers entered a residence on East Douglas in Visalia to execute a search warrant. They found appellant and codefendant Niccole Young in bed, and it seemed they had been asleep. The officers searched the bedroom and found a small safe on the floor next to the bed. The safe was open, and contained separate baggies with 24.63 grams of cocaine base and 1.87 grams of methamphetamine, along with a butane lighter and a bundle of U.S. currency. There were empty baggies in the safe and on the bedroom dresser, but the tops of the baggies had been cut off. There were two cellular phones in the bedroom, which were constantly ringing. The officers also found two individually-packaged baggies of rock cocaine on the dresser next to the bed, and glass smoking pipes.
Officer Cory Sumpter testified the narcotics seized from the black vehicle, and the rock cocaine seized from the house on East Douglas, were possessed for purposes of sale, based on the extremely large amounts, the scales, and the packaging materials. Agent Sumpter testified the smaller amounts of methamphetamine could have been possessed for either personal use or for sale.
Appellant pleaded no contest to numerous narcotics offenses pursuant to a negotiated disposition, and was sentenced to seven years in prison. He attempted to withdraw his no contest pleas at the sentencing hearing, even though he admitted he understood the courts admonishments and advisements when he entered the pleas. Appellant argued that after the plea hearing, he started to research the law and decided his attorney didnt fully inform him of the possible defenses and he shouldnt have accepted the plea bargain. The court denied appellants motion to withdraw the pleas and found he was fully admonished and advised of the consequences and given the opportunity to raise any concerns regarding the pleas or problems with his attorney, and he declined. The court found appellants subsequent change of mind was insufficient to withdraw his pleas.
DISCUSSION
Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.) By letter of April 10, 2003, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.
Our independent review discloses no further reasonably arguable appellate issues. "An arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal. App. 3d 106, 109, 176 Cal. Rptr. 390.)
DISPOSITION
The judgment is affirmed.