THE PEOPLE v. NICK KARATSONYI (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FACTUAL BACKGROUND

On July 7, 2005, Officer Timothy Grabe, a Los Angeles Police Officer assigned to the Narcotics Division, was in the vicinity of Burbank Boulevard and Lankershim Boulevard.   He observed Richard Lechner, whom he recognized from Lechner's prior arrests for narcotics, talking on a pay phone for about 30 seconds.   Lechner had a shopping cart filled with recyclables, and when Lechner finished talking on the phone, he went to a recycling center near Erwin and Lankershim.

After receiving money for the recycling, Lechner went to another pay phone, spoke on the phone for about 15 to 20 seconds, and then went to 5645 Elmer Avenue in North Hollywood.   Officer Minares, Grabe's partner, observed Lechner knock on the door of apartment A, which was defendant's apartment.   After being admitted to the apartment, Lechner left after about three minutes.   Around the same time, a man named Topping arrived at the apartment and was there for less than 30 seconds.   Officer Grabe and Officer Valez stopped Topping and searched him.   Topping was carrying a small plastic zip-lock bag containing what appeared to be methamphetamine.   Officer Grabe also stopped Lechner, who had a similar small plastic zip-lock bag containing what appeared to be methamphetamine.

After a consent search of the apartment, officers found a methamphetamine pipe and money.   A phone message from Lechner stated that he was in the area and wanted $20 worth.

After receiving Miranda ¹ warnings, defendant told the officers he was an occasional user and gave some drugs to his friends on occasion.   Defendant explained he had a lot of drug packaging material at his apartment because he saved it, but he had no explanation why the used bags contained no drug residue.   Defendant claimed he had a bad drug problem and sold $40 that day to support his own habit.

After receiving Miranda warnings, Topping told officers he got the methamphetamine from his friend “ ‘Nick’ ” (defendant), and he had paid $20 for it.   Topping told officers he bought drugs from defendant “ ‘all the time.’ ”   After receiving Miranda warnings, Lechner told officers that he also purchased drugs from “Nick.”

Officer Grabe, who was an expert in narcotics, believed that defendant was engaging in “call and delivery” transactions, whereby a customer would call a dealer by telephone or pager and made arrangements to buy narcotics.   His opinion was based on the fact that Lechner and Topping were in the location for a short time, left, and were later found to be in possession of methamphetamine.   Both Topping and Lechner had bought the drugs from defendant, and although defendant claimed he only gave the drugs away, his statement was contradicted by the packaging material found in his apartment.

PROCEDURAL HISTORY

On November 9, 2005, defendant was charged in a two-count information with violations of Health and Safety Code section 11379, subdivision (a) (sale of a controlled substance).   The information further alleged as to both counts that defendant possessed more than 14.25 grams of a controlled substance containing heroin (Pen.Code, § 1203.07, subd. (a)(1);  Health & Saf.Code, § 11352.5, subd. (1)) and defendant had previously been convicted of violating Health & Safety Code section 11351.5 (Health & Saf.Code, § 11370.2, subd. (a)).

On January 30, 2006, defendant waived his rights to remain silent, to a jury trial, and to subpoena and cross-examine witnesses.   Pursuant to a plea negotiation, defendant pleaded guilty to count 1 and admitted his prior conviction.   The court sentenced defendant to a total of six years, consisting of the midterm of three years plus three years for his prior conviction.   (Health & Saf.Code, §§ 11379, subd. (a);  11370.2, subd. (a).)  The court suspended execution of his sentence, and placed defendant on probation for five years.   The court further sentenced him to serve seven days in county jail, to pay a court security fee of $20, and imposed a restitution fine of $200, imposed and stayed a parole revocation fine of $200, and imposed and suspended a probation revocation fine of $200.   Pursuant to a prosecution motion, the court dismissed count 2.

On January 21, 2010, defendant appeared in court on a charge of possession of a concealed weapon, his probation was revoked and he was remanded to custody.

The court lifted suspension of defendant's sentence.   The court imposed a sentence of six years, with the midterm of three years doubled as a second strike pursuant to section 1170.12, subdivisions (a)-(d) and section 667, subdivision (b)-(i).   The court also imposed a $200 probation revocation fine, imposed and stayed a $200 parole restitution fine, gave defendant a total of 400 days of custody credits, consisting of 270 days actual time and 130 days good time/work time.   On the prosecution's motion, the court dismissed the weapons charge (Case No. LA064156).

On September 28, 2010, the court modified sentence imposed on February 4, 2010.   The court, finding no prior strike conviction was admitted by defendant in his original plea of January 30, 2006, vacated the three-year term based upon the strike, but imposed three years pursuant to Health & Safety Code section 11370.2, subdivision (a), for a total sentence of six years.   Defendant was given 412 days custody credits, consisting of seven days original credit, 365 days for probation violation, plus an additional 20 actual days and 20 days goodtime/work time.

We appointed counsel to represent defendant on appeal.   After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record.   On October 20, 2010, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider.   To date, we have received no response.   We have examined the entire record and are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist.   (People v. Kelly (2006) 40 Cal.4th 106, 109-110;  People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]..  FN1. Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].

FN2. The record discloses two previous violations of defendant's probation.   On October 5, 2006, defendant appeared in court on a probation violation and admitted to a dirty drug test.   Probation was reinstated and he was ordered to serve 365 days in county jail.   On November 28, 2007, defendant appeared on a second violation and probation was reinstated on condition defendant remain in an out-patient program..  FN2. The record discloses two previous violations of defendant's probation.   On October 5, 2006, defendant appeared in court on a probation violation and admitted to a dirty drug test.   Probation was reinstated and he was ordered to serve 365 days in county jail.   On November 28, 2007, defendant appeared on a second violation and probation was reinstated on condition defendant remain in an out-patient program.

MALLANO, P. J. CHANEY, J.