P. v. Hart

Filed 5/15/07 P. v. Hart CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan Speer, Judge. Affirmed.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Phillip Hart appeals from a judgment entered following his no contest plea to possession of cocaine base for sale, count 2 (Health & Saf. Code,  11351.5), his admission that he suffered one prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a) and a finding by the court[1] that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code,  1170.12, subds. (a) - (d) and 667, subds. (b) - (i)).[2] Pursuant to his negotiated plea, he was sentenced in the instant case to prison for eleven years, consisting of the middle term of four years, doubled pursuant to the Three Strikes law, plus three years pursuant to Health and Safety Code section 11370.2, subdivision (a). As part of the negotiated plea, the remaining counts and enhancements were dismissed.[3]

The transcript of the preliminary hearing indicates that on January 7, 2005, at approximately 1:00 p.m., Los Angeles Police Officer Robert McConnell was in the area of Killian and Newcastle Avenue in the County of Los Angeles, when he saw appellant sitting in his vehicle, which was stopped in an alley. Appellant was in the drivers seat and had a small black scale in his lap. Some solid white objects resembling rock cocaine were on top of the scale. Officer McConnell observed appellant hand several of the rocks to the passenger, who was sitting in the front seat and who was holding some United States currency. Officer McConnell ordered appellant out of the vehicle and appellant complied, but then ran northbound down the alley. Officer McConnell chased appellant and saw him manipulating something inside his sweats . . . and at the mouth of the alley . . . [Officer McConnell] saw a plastic bag fall from his [sweat] pants. . . . The bag was later recovered and contained 7.7 grams net of cocaine. Inside appellants vehicle, Officer McConnell recovered $80 in the center console, a black scale, and additional white solid objects resembling rock cocaine. It was Officer McConnells opinion the cocaine base recovered from appellant was possessed for sale.

Appellants motions pursuant to Penal Code section 1385, to strike his prior felony conviction were denied.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On January 18, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist and appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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Analysis and review provided by El Cajon Property line Lawyers.

[1] Appellant waived his right to a jury trial on the strike prior.

[2] The information also alleged, count 1, appellant sold, transported or offered to sell a controlled substance (Health & Saf. Code,  11352, subd. (a)) and count 3, appellant gave false information to a police officer (Pen. Code,  148.9, subd. (a)), a misdemeanor. It was further alleged as to counts 1 and 2, appellant had suffered three prior convictions within the meaning of Health and Safety Code sections 11370, subdivisions (a) and (c) and 11370.2, subdivision (a) and had suffered six prior convictions and served prison terms within the meaning of Penal Code section 667.5.

[3] In addition, the court sentenced appellant to a consecutive term of two years and eight months in case number LA050896 for a total term of 13 years and eight months.