THE PEOPLE v. DANNY DIAZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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This appeal follows sentencing after a probation violation and termination hearing.   Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ), appellant's counsel filed an opening brief requesting that this court review the record and determine whether any arguable issues exist on appeal.   We have reviewed the entire record and find no arguable issue.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we provide a brief description of the facts and procedural history of the case.

On July 2, 2008, the People alleged felony possession of methamphetamine.   (Health & Saf., § 11377, subd. (a).)  The People also alleged that appellant Danny Diaz suffered two prior prison terms within the meaning of Penal Code section 667.5.   Appellant waived his right to a jury trial, pled guilty to possession of a controlled substance, and admitted the prison priors.   Appellant was placed on probation for three years and ordered to comply with the requirements of Proposition 36.

Appellant's first violation occurred on July 22, 2008, when he failed to report to the Proposition 36 program.   That same day appellant's probation officer informed the court that appellant tested positive for a controlled substance.   On August 6, 2008, appellant admitted he tested positive for controlled substances.   The court reinstated his probation, but on January 13, 2009, appellant admitted his second drug-related probation violation.   The court reinstated his probation, and then on October 2, 2009, appellant admitted to a third drug-related probation violation.   The court reinstated appellant's probation, with the condition that appellant complete the drug court program.   On February 25, 2010, appellant admitted to violating probation by failing to complete counseling and failing to complete the drug court program.

On April 22, 2010, after a contested probation violation and termination hearing, the court found true the allegation that appellant tested positive for methamphetamine on April 5, 2010, and willfully violated his conditions of probation.¹  On June 17, 2010, appellant was sentenced to four years in state prison, which included the midterm of two years for the substantive offense and one year for each prior.  (Pen.Code, §§ 18, 667.5, subd. (b).)  The abstract of judgment correctly reflects a four-year sentence but incorrectly indicates that it is based only on the substantive offense.

DISCUSSION

We appointed counsel to represent appellant.   After review of the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to Wende, supra, 25 Cal.3d at page 441.   On January 14, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   We received no response.

We ordered the record augmented and have examined the entire record.   We conclude that no arguable issue exists and that appellant's attorney has fully complied with the responsibilities of counsel.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284;  People v. Kelly, supra, 40 Cal.4th at pp. 118–119;  Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The case is remanded to the trial court to correct the abstract of judgment to reflect the midterm of two years on the substantive offense, plus one year for each Penal Code section 667.5, subdivision (b) prior and forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.   The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Defendant testified in his own defense, denying that he used methamphetamine.   Carlos Estrada, a lab assistant, testified that appellant told him he “handle[d]” a controlled substance.   Anthony Perez, a lab technician, testified that on April 5, 2010, appellant tested positive for methamphetamine..  FN1. Defendant testified in his own defense, denying that he used methamphetamine.   Carlos Estrada, a lab assistant, testified that appellant told him he “handle[d]” a controlled substance.   Anthony Perez, a lab technician, testified that on April 5, 2010, appellant tested positive for methamphetamine.

BIGELOW, P.J. RUBIN, J.