Opinion
C085468
11-01-2017
THE PEOPLE, Plaintiff and Respondent, v. KEITH WASHINGTON, Defendant and Appellant.
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on November 1, 2017, be modified as follows:
1. On page 3, second full paragraph, leave the first sentence of that paragraph and delete the rest of the paragraph so that the paragraph reads:
"Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant."
2. On page 3, the Disposition, leave the first sentence of that paragraph and delete the rest of the Disposition so that the Disposition reads:
"The judgment is affirmed."
There is no change in the judgment. BY THE COURT: /s/_________
Raye, P. J. /s/_________
Robie, J. /s/_________
Murray, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE010945)
Defendant was charged with a single count of possessing cocaine for the purpose of sale. That same charge resulted in an allegation that defendant violated his probation in case No. 14F04694 in which he was convicted in 2014 of being a felon in possession of a firearm. Defendant pled not guilty to the new charge, and the allegation that he violated his probation was set to trail his jury trial, but it was ultimately heard by the court concurrent with the trial.
At trial, Sacramento Police Officer Paul Castaneda testified that he was on patrol in the Del Paso Heights area when he saw six individuals standing in front of defendant's mother's house. Defendant was inside a car that was parked in front of the house. Officer Castaneda searched defendant's person and found a sandwich bag in his front pocket. The sandwich bag contained approximately 23 grams of cocaine. In another of defendant's pockets, Officer Castaneda found $373.
Officer Castaneda also searched inside defendant's mother's home. In her wooden dresser, Officer Castaneda found a box of sandwich bags. Officer Castaneda took the cocaine, the money, the box of sandwich bags, and defendant's cell phone, and booked them into evidence.
Officer Chad Lewis also was at the scene. He remembered there were about eight to 10 people in the vicinity when he and Officer Castaneda made contact with defendant. Officer Lewis searched the other individuals at the scene; he did not find any drugs. He also did not witness any drug transactions.
Officer Todd Culp testified that, in his experience, a person holding 22 to 23 grams of cocaine, with $373 cash in his or her pocket, and access to more baggies, intends to sell that cocaine. Officer Culp had never heard of someone holding that much cocaine for personal use, though he would expect also to find a scale, or some kind of measuring tool, and something to divide up the cocaine.
The jury found defendant not guilty of possessing cocaine for the purpose of sale, but found him guilty of the lesser included, misdemeanor, offense of simple possession. The trial court found defendant in violation of his probation. The court subsequently sentenced defendant to time served on the misdemeanor possession conviction and the middle term of two years on defendant's prior conviction for being a felon in possession of a firearm. The court awarded defendant 210 days of custody credit and ordered him to pay various fines and fees.
Defendant initially filed his appeal in the appellate division of the trial court. The appeal was later transferred to this court.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts and procedural history 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 from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. However, we did discover the trial court failed to prepare an abstract of judgment. The trial court has a duty to ensure a correct abstract is prepared and " 'furnished to the officer whose duty it is to execute the . . . judgment.' " (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct the trial court to prepare an abstract of judgment and deliver a certified copy to the Department of Corrections and Rehabilitation.
DISPOSITION
The judgment is affirmed. The trial court shall prepare an abstract of judgment. A certified copy of the abstract shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.