P. v. King
Filed 1/15/10 P. v. King CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. ANDREW CLIFFORD KING, Defendant and Appellant. | A124461 (Contra Costa County Super. Ct. Nos. 02-284183-1 & 05-080860-0) |
Appellant Andrew Clifford King appeals from two state prison sentences he received after he was convicted by a jury of possession of methamphetamine (Health & Saf. Code, 11377) in case number 05-080860-0 (Case 2), and the trial court found that he violated the terms of his probation in case number 02-284183-1 (Case 1) and terminated probation. Appellants counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsels brief also includes an Issues Statement to assist the court in conducting its independent review, in accordance with People v. Anders (1967) 386 U.S. 738 (Anders).
Counsel has declared that appellant has been notified that an independent review under Wende/Anders was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.
Appellant was originally charged by criminal complaint filed by the Contra Costa County District Attorneys Office on August 6, 2004, with one count of possession of a controlled substance for sale; to wit, methamphetamine (Health & Saf. Code, 11378), and two counts of illegal possession of ammunition by a convicted person (Pen. Code, 12316, subd. (b)(1).) The complaint also included multiple sentencing enhancement allegations.
On October 20, 2004, appellant pleaded no contest to the possession for sale count (count 1), and several of the sentencing enhancements, including a probation ineligibility allegation. On motion by the prosecutor, all other charges and allegations in the complaint were dismissed. In accordance with the terms of the negotiated plea, appellant was sentenced to a total aggregate term in state prison of four years four months, the execution of the sentence was suspended, and appellant was admitted to three years felony probation. As material here, one of the conditions of probation was that appellant refrain from the use or possession of controlled substances.
A petition to revoke probation in Case 1 was filed and later granted on June 6, 2007, after new charges were filed against appellant in Case 2. Following a preliminary hearing at which probably cause was found, appellant was charged by information in Case 2 on July 22, 2008, with one count of possession of a controlled substance for sale; to wit, methamphetamine (Health & Saf. Code, 11378). The information also included multiple sentencing enhancement allegations. A determination on the alleged probation violation trailed the disposition of Case 2.
Trial in Case 2 commenced on December 1, 2008. On day six of trial, a mistrial was declared. Case 2 was retried before a new jury commencing on January 29, 2009.[1] On day five of the trial, the jury entered a verdict of not guilty to the charge of possession of methamphetamine for sale, but guilty of the lesser included charge of possession of methamphetamine. The trial court then determined that appellant had violated the terms of his probation in Case 1, and set both cases over to February 20 for report and sentencing.
Report and sentencing took place on February 27. At that time, the court terminated appellants probation, and executed the previously stayed state prison term of four years four months imposed in Case 1, with credits for time served locally and good time/work time credits. In addition, in Case 2 the court denied Proposition 36 diversion, and sentenced appellant to a mitigated term of two years, to run concurrent with the sentence imposed in Case 1. As to Case 2, local custody credits were awarded, as well as good time/work time credits. Fines, fees, and penalties authorized by law were also imposed in both cases.
Upon our independent review of the record, including the potential issues suggested by appellants counsel pursuant to Anders, we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The jurys verdict in Case 2 was supported by substantial evidence, as was the trial courts determination that appellant had violated the terms of his probation imposed in Case 1. We discern no error in the sentencing in either case. The refusal to grant probation in Case 2, the termination of probation in Case 1, the refusal to grant Proposition 36 diversion in Case 2, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines, fees, and penalties imposed were all supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
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RUVOLO, P. J.
We concur:
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Reardon, J.
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Sepulveda, J.
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[1] All further dates are in the calendar year 2009, unless otherwise indicated.
