P. v. Etherton
Filed 8/3/07 P. v. Etherton CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, Plaintiff and Respondent, v. JOHN RUSSELL ETHERTON, Defendant and Appellant. | C053492 (Super. Ct. No. 06F2826) |
While executing a search warrant for the purpose of arresting Virgil Randolph James, law enforcement officers searched a travel trailer and a residence and discovered a clandestine methamphetamine lab, several firearms, and 77 marijuana plants.[1] Defendant John Russell Etherton was the registered owner of the travel trailer, and the owner of the residence stated that approximately 28 of the marijuana plants belonged to John. Officers then sought and obtained a second search warrant for, among other things, the same travel trailer and residence for the purpose of seizing certain property and arresting defendant.
Defendant was charged with manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a); count 1), sale or transportation of methamphetamine (id. 11379, subd. (a); count 2), possession of marijuana for sale (id. 11359; count 3), cultivating marijuana (id. 11358; count 4), possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1); count 5),[2]illegal possession of ammunition ( 12316, subd. (b)(1); count 6), and driving without a license, a misdemeanor (Veh. Code, 12500, subd. (a); count 7). With respect to counts 1 and 2, it was alleged that defendant had a prior drug conviction. (Health & Saf. Code, 11370.2, subds. (b), (c).) With respect to count 1 only, it was alleged that defendant was personally armed with a firearm in the commission of that offense. ( 12022, subd. (c).) With respect to counts 3 and 4, it was alleged that a principal in the commission of those offenses was armed with a firearm. ( 12022, subd. (a)(1).)
Defendant moved to quash the search warrants based on a lack of probable cause and to suppress the evidence obtained during the searches. ( 1538.5.) He argued that probable cause was lacking as to the first warrant because the peace officer who prepared the search warrant [] failed to incorporate by reference Attachment C within the warrant. Attachment C outlined the specific information supplied to [the officer] from an undisclosed informant as to the whereabouts of Virgil Randolph James. He also claimed that, [a]ll evidence seized during service of the second warrant should be suppressed because it was based on illegally obtained evidence.
The trial court denied the motion, finding the attachment was incorporated into the statement of probable cause, which in turn was incorporated into the Search Warrant and Affidavit. In any event, the court concluded the evidence was admissible under the good faith exception to the exclusionary rule since the law enforcement officers who executed the warrants were justified in relying on them.
Following the denial of his motion to quash, defendant entered a negotiated plea of no contest to manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)), admitted a prior drug conviction allegation (id. 11370.2, subd. (b)), and agreed to a stipulated sentence of 10 years in prison, including the upper term of seven years for manufacturing methamphetamine. Defendant waived preparation of a probation report and, in accordance with the plea agreement, the trial court sentenced him to 10 years in prison, with credit for 139 days (93 actual days and 46 good conduct); imposed a $600 restitution fine ( 1202.4), plus a 10 percent administrative fee ( 1202.4, subd. (l)), another $600 restitution fine which was suspended unless parole is revoked ( 1202.45), a $157.50 criminal laboratory fee (Health & Saf. Code, 11372.5, subd. (a)), a $20 court security fee ( 1465.8); and ordered defendant to provide DNA samples ( 296) and to register as a drug offender (Health & Saf. Code, 11590).
Defendant appeals. His request for a certificate of probable cause was denied.
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. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
However, the record reflects that the remaining counts and enhancement allegations were not dismissed as required by the plea agreement. We will direct the trial court to do so. Although the plea agreement does not expressly provide for their dismissal, we conclude that such was an implicit term of the plea agreement since defendant agreed to imposition of the upper term for manufacturing methamphetamine.
DISPOSITION
The judgment is affirmed. The trial court is directed to dismiss counts 2-7 and the remaining enhancement allegations. (Health & Saf. Code, 11370.2, subd. (c); 12022, subds. (a)(1), (c).)
CANTIL-SAKAUYE , J.
We concur:
SCOTLAND, P.J.
MORRISON , J.
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[1] The facts are taken from the statement of probable cause for the second search warrant.
[2] Further undesignated statutory references are to the Penal Code.
