P. v. Baggett

Filed 9/7/07 P. v. Baggett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

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During a traffic stop on December 10, 2003, an officer found that defendant Andrew Alan Baggett was driving with a suspended license and took him into custody. A consensual search revealed a glass pipe used for smoking controlled substances. Two plastic baggies were found on defendants person. One baggie contained brown-stained cotton balls and the other contained .9 gram of suspected methamphetamine. A search of the car revealed three glass smoking pipes, several containers of bilayered liquids, ephedrine in a powder form, and numerous items associated with the manufacture of methamphetamine. Defendant admitted to the probation officer that he had been manufacturing methamphetamine for his personal use as well as his girlfriends personal use.

Defendant entered a negotiated plea of guilty to possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine (former Health & Saf. Code, 11383, subd. (c)(1), now Health & Saf. Code, 11383.5, subd. (b)(1)) in exchange for dismissal of the remaining counts (manufacturing methamphetamine; transportation of methamphetamine; driving with a suspended license, a misdemeanor; and possession of paraphernalia, a misdemeanor) and no state prison at the outset.

The court granted probation for a term of three years subject to certain terms and conditions, including the requirement that defendant abstain from the use of controlled substances and submit to drug testing.

Defendant submitted to scheduled drug testing on Mondays and Thursdays. After he was taken off scheduled testing and required to submit to random testing, he tested positive. Defendant admitted violating probation by testing positive for amphetamines on three separate occasions.

Defendant had been complying with probation, making payments to his revenue and recovery account, attending drug treatment, and apparently obeying all laws other than testing positive during a two-month period. The court continued sentencing for 90 days to give defendant another opportunity to comply and released him on his own recognizance. The court ordered defendant to return to court on August 7, 2006, for sentencing.

During his release, defendant tested positive for methamphetamine. Defendant failed to appear for sentencing, and the court issued a bench warrant for his arrest. On October 10, 2006, he was in custody and arraigned on new charges.

On October 16, 2006, the probation officer recommended the upper term because defendant had some ability to avoid methamphetamine when he knew he would be tested. The court sentenced defendant to state prison for the midterm of four years, ordered him to pay various fees and fines, and awarded presentence custody credit.

Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, 1237.5.)

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 (1979) 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 the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We note an error. At the entry of plea hearing, the Peoples motion to dismiss the remaining counts was taken under submission. At sentencing, the trial court did not rule on the motion. Since the negotiated plea bargain was conditioned upon the dismissal of the remaining counts, defendant is entitled to his bargain. In the interests of judicial economy, we will order the remaining counts dismissed. Any party wishing to address this issue may petition for rehearing. (Gov. Code,  68081.)

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified, dismissing the remaining counts of manufacturing methamphetamine; transportation of methamphetamine; driving with a suspended license, a misdemeanor; and possession of paraphernalia, a misdemeanor. As modified, the judgment is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

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