P. v. Nunes
Filed 1/8/09 P. v. Nunes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MARTIN NUNES, Defendant and Appellant. | C058363 (Super. Ct. No. CM028282) |
This case comes to us on a Wende[1]request. Pursuant to a negotiated settlement, defendant Joseph Martin Nunes pled no contest to possession for sale of methamphetamine and admitted one of three alleged prior controlled substance convictions. He was sentenced to state prison for six years -- the upper term of three years because of his numerous prior convictions plus three years for the prior drug conviction. Restitution fines of $200 were imposed pursuant to Penal Code sections 1202.4 and 1202.45; also imposed were lab and penalty assessments totaling $180 and a court security fee of $20.
FACTS
Narcotics officers executing a search warrant for defendants residence located methamphetamine and marijuana as well as scales, packaging materials, hypodermic syringes, pay-owe sheets, and several glass smoking devices.
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, supra, 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. Defendant has filed a letter with this court which we consider a supplemental brief even though it contains no citations to the record, authority, or supporting argument.
First, defendant claims that when he signed the plea waiver form he assumed he would receive the midterm because of the Cunningham law. The Cunningham to which defendant refers is Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], wherein the court reaffirmed its prior decisions that a fact used by the court to increase a defendants sentence above the prescribed statutory maximum must be admitted by the defendant or submitted to a jury and found true beyond a reasonable doubt. (Id.at pp. ___, ___ [166 L.Ed.2d at pp. 864, 868.) However, an exception to this rule is where the defendant has a prior conviction. (Ibid.) Since defendant has prior convictions, the Cunningham law does not apply to him.
Second, defendant claims that it was improper for the probation report to cite two of his prior probation violations because, according to him, they had been expunged from [his] record. The inclusion of these probation violations in the probation report, defendant continues, caused him to be denied Drug Court treatment, further probation, or a lesser sentence to state prison. The record does not support defendants claims.
The summary of defendants criminal history contained in the probation officers report shows that defendant was placed on 36 months probation pursuant to Proposition 36 for three cases in December 2001. In January 2002, defendant completed the Right Roads Treatment Program, but remained on probation. In March 2002, and January 2003, defendant was found in violation of probation in all three cases, but it was reinstated in each case. Finally, in August 2003, probation was terminated in each case and the convictions set aside and dismissed pursuant to 1210.1(d)PC.
A dismissal pursuant to Penal Code section 1210.1, subdivision (d) does not operate as a dismissal such that it is unavailable for further consideration in future criminal proceedings. That prohibition is for dismissals made pursuant to Penal Code section 1210.1, subdivision (e)(1).
Penal Code section 1210.1, subdivision (e)(1) requires a hearing and finding by the court that the defendant has successfully completed a drug treatment program and substantially complied with the terms of probation, including the refraining of the use of drugs after completion of the treatment. If the court so finds, the conviction upon which probation was based must be set aside, the accusatory pleading dismissed and, with certain exceptions not relevant here, both the arrest and the conviction shall be deemed never to have occurred. The section also permits the defendant to petition the court at any time after completion of drug treatment for dismissal of the charges, which if granted, shall thereafter release him or her from all penalties and disabilities resulting from the offense of which he or she has been convicted.
Nothing in the record shows that defendant ever received a dismissal, or in his words expungement, of the cases to which he refers. Consequently, his claim is rejected.
Finally, defendant seems to argue that because he believes the amount of controlled substance found during the search was small, we should reduce his sentence. Defendant pled guilty to possession for sale and his record is extensive. Under such circumstances it is neither within our power nor desire to reduce defendants sentence.
We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
SIMS , Acting P. J.
HULL, J.
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[1]People v. Wende (1979) 25 Cal.3d 436.
