P. v. Sandoval

Filed 2/19/10 P. v. Sandoval CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Catarino Garcia Sandoval was charged by information with two felonies: possession of heroin for sale (Health & Saf. Code, 11351) and transportation, sale, or distribution of heroin (id., 11352, subd. (a)), and with one misdemeanor: possession of paraphernalia (id., 11364). The information further alleged that defendant had possessed more than 14.25 grams of a substance containing heroin within the meaning of Penal Code section 1203.07, subdivision (a)(1) and (a)(2), which, if true, would make him ineligible for probation.

Defendant entered into a negotiated plea agreement whereby he agreed to plead no contest to the three crimes charged in exchange for dismissal of the no-probation enhancement and a grant of probation conditioned upon no more than one year and no less than eight months in county jail. The trial court sentenced defendant consistent with the terms of his plea bargain, dismissing the enhancement and conditioning his probation upon his spending 10 months in county jail. Defendant filed a timely appeal, noting that the appeal is based upon the sentence or other matters occurring after the plea. (Cal. Rules of Court, rule 8.304.)

We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.

I.                   Background[1]

On or about March 22, 2009, defendant was found in possession of several plastic baggies containing a large amount of heroin. Total weight of the drug was determined to be 46.8 grams. A piece of foil and a tubular straw, which the arresting officer recognized as heroin smoking paraphernalia, were also found on defendants person. The officer explained that a typical heroin user will use one tenth of a gram per use and will usually buy one gram at a time. Defendant admitted he was addicted to heroin. He smokes it; he does not inject it. He agreed that he had a large amount on his person the day he was arrested but stated that it was all for his personal use. He smokes the drug up to 10 times a day and had bought the large quantity so he would not run out.

II.                Discussion

Defendant did not request a certificate of probable cause, and, therefore, the appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (Pen. Code, 1237.5, subd. (a).) The certificate is not required, however, when the notice of appeal states, as this one does, that it is based upon grounds that arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4).)With that limitation in mind, we have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436and People v. Kelly (2006) 40 Cal.4th 106. Having done so, we conclude that there is no arguable issue on appeal.

III.             Disposition

The judgment is affirmed.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

McAdams, J.

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[1] Our recitation of the facts is taken from the transcript of the preliminary examination and from the probation report.