P. v.
Filed 4/3/13 P. v. Vaughan CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
CARL VAUGHAN,
Defendant and
Appellant.
H038551
(Monterey
County
Super. Ct.
No. SS101958A)
pleaded no contest to one count of possessing marijuana in prison
(Pen. Code, § 4573.6); and admitted that he had one prior strike
conviction. (§ 1170.12)
exchange for his no contest plea and admission, defendant was promised a four
year prison term to be served consecutively with a sentence he was already
serving.
On May 7, 2012, the same day that defendant entered his plea,
the court sentenced defendant to the lower term of two years doubled because of
the prior strike conviction. The court
did not award defendant any credit for time served because the court determined
that he was not entitled to any credit since he was at the time serving a
prison sentence. The court imposed a
$240 restitution fund fine, imposed but suspended a parole revocation fine in
the same amount, and imposed $70 in assessments. Thereafter, defendant filed a timely
of appeal based on only " 'sentencing issues.'
"
Defendant's appointed 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 (Wende). Counsel has declared that defendant was
notified that no issues were being raised by counsel on appeal and that an
independent review under Wende was being
requested.
On December
12, 2012, we notified defendant of his right to submit written argument on his
own behalf within 30 days. That time has
passed and we have not received a response from defendant.
Pursuant to
Wende, supra,
25 Cal.3d 436, we have reviewed the entire record and have concluded there is
no arguable issue on appeal. Pursuant to
People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief
description of the facts and procedural history of the case, the crimes of
which the defendant was convicted, and the punishment imposed." (Id.
at p. 110.)
Facts
title="">
On
September 21, 2009, in conducting a search of defendant's prison cell,
correctional officers found a quantity of a green leafy substance wrapped in
toilet paper on the ground under the window of the cell. In addition, they located more of the green
leafy substance in two socks underneath the bottom bunk. Defendant was the only inmate assigned to the
cell. Later, the leafy substance was
tested at the Department of Justice laboratory in Freedom, California; it was
determined to be a usable quantity of marijuana.
Proceedings Below
On October
10, 2010, the
County District Attorney filed an information in which defendant was
charged with two counts of possession of a controlled substance in prison (§
4573.6).
defendant had suffered three prior strike convictions and had served three
prior prison terms. (§§ 1170.12, 667.5,
subd. (b).) On October 27, 2010,
defendant pleaded not guilty to the charges and denied the prior conviction and
prison prior allegations.
Subsequently,
on September 27, 2011, defendant filed a motion pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, in which he asked the court to exercise its discretion
and dismiss his strike priors; on September 28, 2011, the court granted the
motion in part by dismissing two of the three.
On May 7,
2012, defendant entered into a plea bargain in which the People agreed to
dismiss one of the possession counts in exchange for defendant's guilty plea to
the other count, admission of one strike prior and a prison sentence of four
years to be served consecutively to the sentence he was already serving. On the same day, defendant initialed and
signed a "WAIVER OF RIGHTS, PLEA OF GUILTY/NO CONTEST" form.
the court confirmed with defendant that he had gone over the form with his
attorney and that the initials and signature on the form were his. The court advised defendant of his
constitutional rights; defendant waived those rights. Thereafter, defendant entered a no contest
plea to one count of possession of a controlled substance in prison and
admitted that he had one prior strike conviction. The parties stipulated to, and the court
found, a factual basis for the plea as set forth in the preliminary hearing transcript
as to only the count to which defendant had pleaded.
As noted, thereafter,
pursuant to the negotiated
disposition, the court sentenced defendant to a two year prison
term doubled because of the strike prior; the court granted the People's motion
to dismiss the second possession count in accordance with the negotiated
disposition.
Upon our independent
review of the record, we conclude there are no meritorious issues to be argued,
or that require further briefing on appeal.
The sentence imposed was consistent with the plea bargain. The restitution fine and assessments imposed
were supported by the law and facts. At
all times appellant was represented by competent counsel.
The judgment
is affirmed.
______________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
name="_ftn1" title="">[1] All unspecified section references are
to the Penal Code.
name="_ftn2" title="">[2] The facts are taken from the
preliminary hearing held on October 15, 2010.
